State ex rel. Case v. Superior Court, 81 Wash. 623,


143 Pac. 461 (1914).
                [En Banc. September 21, 1914.]

[No. 12284. Initiative Measure No. 7. Bureau of Inspection.]
     THE STATE OF WASHINGTON, on the Relation of Lucy R.Case,
      Plaintiff, v. THE SUPERIOR COURT FOR THURSTON
           COUNTY, CLAYPOOL, J. et al., Defendants.

[No. 12287. Initiative Measure No. 8. Employment Agencies.]
     THE STATE OF WASHINGTON, on the Relation of I. M. Howell,
      Secretary of State, Plaintiff, v. THE SUPERIOR COURT
           FOR THURSTON COUNTY, CLAYPOOL, J. et al.,
                         Defendants.

      [No. 12289. Initiative Measure No. 9. First Aid.]
      THE STATE OF WASHINGTON, on the Relation of E. A.
      Plaintiff, v. THE SUPERIOR COURT FOR THURSTON
          COUNTY, MITCHELL, J. et al., Defendants.

[No. 12285. Initiative Measure No. 10. Public Highways.]

THE STATE OF WASHINGTON, on the Relation of Lucy R. Case,
      Plaintiff, v. THE SUPERIOR COURT FOR THURSTON
          COUNTY, MITCHELL, J. et al., Defendants.

[No. 12286. Initiative Measure No. 12. Tax Commission.]

THE STATE OF WASHINGTON, on the Relation of Lucy R.Case,
     Plaintiff, v. THE SUPERIOR COURT FOR THURSTON
          COUNTY, CLAYPOOL, J. et al., Defendants. 1 [Syllabus by the Reporter.]

STATUTES - INITIATION - PETITION - VALID SIGNATURES -

DETERMINATION - REVIEW BY COURTS. The determination (under

3 Rem. & Bal. Code, SS 4971-1 et seq.) of the number of valid

signatures upon an


1 Reported in 143 Pac. 461.

 624    STATE EX REL. CASE v. SUPERIOR COURT.
                     Syllabus.                    81 Wash.

initiative petition to submit a measure to a vote of the people,

is a political rather than a judicial question, although

including an issue of fraud, in the absence of statutory

provisions to the contrary; hence the legislature has power to

commit the same to administrative officers, and the courts could

not, in the absence of express statute, review the determination

of such officers.

SAME - REVIEW BY CANVASSING OFFICERS - MINISTERIAL DUTIES.

The determinations made by local officers upon questions expressly

submitted to them by the law relating to the submission of

initiative measures to a vote of the people cannot be reviewed

by the secretary of state as a canvassing officer in the absence

of express statutory authority therefor, since the duties of

canvassing officers are purely ministerial and limited by the

express power conferred upon local certifying officers.

SAME - DETERMINATION OF VALID SIGNATURES - REVIEW - LIMITATIONS

- STATUTES - CONSTRUCTION. 3 Rem. & Bal. Code, SS 4971-15,

providing that, upon submission to him of initiative petitions,

the secretary of state "shall proceed to canvass and count the

names of certified legal voters on such petition. If he find

the same name signed to more than one petition, he shall reject

both names from the count," being a special authority to reject

names for one reason only, suggests, almost conclusively, a

limitation on his power to reject names for any other cause.

SAME - DETERMINATION OF VALID SIGNATURES - POWERS OF

SECRETARY OF STATE - LIMITATIONS - STATUTES - CONSTRUCTION.

3 Rem. & Bal. Code, SS 4971-12, providing that, upon an initiative

petition being submitted to the secretary of state, he shall

examine and file the same "if upon examination said petition

appears to be in proper form and to bear the requisite number

of signatures of legal voters," merely provides for a preliminary

decision by the secretary as to the filing; and the fact that

Id., SS 4971-13 provides for a review of such preliminary

decision in the courts, does not enlarge the scope of the

review on an appeal from the secretary's final canvass of the

signatures, so as to include in the latter review the question

of the number of "signatures of legal voters," where, in the

secretary's final canvass, he is only authorized to reject names

if he finds the same name signed to more than one petition.

SAME - "CANVASS" - LIMITATIONS - STATUTES - CONSTRUCTION.

Under 3 Rem. & Bal. Code, SS 4971-15, providing that, upon

submission of initiative petitions, the secretary of state shall

"canvass" and count the names of certified legal voters, and if

he finds the same name signed to more than one petition he shall

reject both names from the count, the word "canvass," though

meaning to "scrutinize, examine, and determine," does not

authorize the secretary of state to do more than scrutinize and

examine the petitions to determine the

           STATE EX REL. CASE v. SUPERIOR COURT.      625
 Sept. 1914               Syllabus.

number of and reject the duplicate names, that being his only

express authority; and the words "canvass and count" are given

full effect without finding any intent to authorize the secretary

of state to decide the genuineness of the signatures, the forgery

of officer's initials, the sufficiency of the certifying officer's

certificates, and like questions.

SAME - DETERMINATION OF LEGAL SIGNATURES - APPEAL - NECESSITY

- REVIEW - PARTIES ENTITLED TO ALLEGE ERROR. Where the secretary

of state, upon his canvass of initiative petitions, rejects

certain names, but accepts sufficient to put the measure on the

ballot, so that his decision as a whole is in favor of the

advocates of the measure, they may, on appeal by opponents of the

measure, appear in the superior court in opposition to the claims

of the opponents seeking reversal of the secretary's decision,

without having taken an independent appeal within the five-day

limit fixed by law.

SAME - DETERMINATION OF VALID SIGNATURES - LOCAL OFFICERS -

CONCLUSIVENESS - REVIEW BY SECRETARY OF STATE - STATUTES -

CONSTRUCTION. The secretary of state is without authority, upon

the canvass of initiative petitions, to inquire into or decide

whether the names signed are the "signatures of legal voters,"

and when a local certifying officer has decided that names upon

a petition are the signatures of legal voters, and has evidenced

his decision by a proper certificate, his decision is final; in

view of 3 Rem. & Bal. Code, SS 4971-8, providing that the person

in each precinct having possession of the registration books shall

certify that he has carefully compared the signatures on the

foregoing petitions with said registration books, and the

signatures initialed by him are the signatures of legal voters

of the state; and Id. SS 4971-8, providing that in precincts

where registration is not required, the petition shall be

certified by a justice of the peace, road supervisor, member of

a school board, or a postmaster, to the effect that he resides

in the precinct, is acquainted with the legal voters thereof, and

that he believes the signatures initialed by him are the

signatures of legal voters of such precinct; and in view of the

fact that the only authority for a review of the decisions of

such local certifying officers is the provision in Id., SS 4971-15,

authorizing the secretary of state to canvass and count the

names of certified legal voters, and "if he find the same name

signed to more than one petition, he shall reject both names from

the count."

SAME - DETERMINATION OF LEGAL SIGNATURES - APPEAL - REVIEW BY

COURTS - STATUTES - CONSTRUCTION. 3 Rem. & Bal. Code, SS 4971-17,

providing that any person dissatisfied with the determination by

the secretary of state that an initiative petition does or does

not contain the requisite number of signatures of legal voters,

may have the same submitted to the superior court by citation or

writ for

 626    STATE EX REL. CASE v. SUPERIOR COURT.
                     Syllabus.                    81 Wash.

examination and for a writ compelling certification of the measure,

or for an injunction to prevent the same, as the case may be, to

be heard and determined by the court, does not authorize the

superior court to review the question as to requisite number of

signatures of legal voters; since the appeal was to review only

errors of the secretary of state and that question could not be

determined by the secretary of state, the certificate of local

certifying officers being conclusive on that subject on the

courts as well as on the secretary of state.

SAME - DETERMINATION OF LOCAL OFFICIALS - CONCLUSIVENESS. The

finality of the determination of the local certifying officers is

not affected by the fact that there is no special provision of

law requiring such officers to return their certificate to the

secretary of state.

SAME. Such finality in nonregistration precincts is not affected

by the fact that the officer is only required to certify as to

his "belief" that his initialed signatures were those of

qualified voters.

SAME - INITIATION OF MEASURES - FRAUD AND CORRUPTION -

ENFORCEMENT OF ACT - STATUTES - CONSTRUCTION. The fact that

3 Rem. & Bal. Code, SSSS 4971-31 and 4971-32, provide severe

penalties for forgeries, fraud, false reports and certificates,

and violations of the provisions of the law for initiation by

petition of a measure to be submitted to the vote of the people,

and that by Id., SS 4971-5, provides for printing a warning of

these provisions on every petition circulated, evidences an

intent on the part of the legislature to make them the only

safeguards looking to the prevention of fraud, forgery, and

corruption, of this constitutional right of the people, except

as provided for the review of decisions by executive officers.

SAME - INITIATION OF MEASURES - DIRECTORY REQUIREMENTS - USE

OF INK. The provisions of 3 Rem. & Bal. Code, SS 4971-10,

requiring a local certifying officer, in comparing and certifying

the signatures on an initiative petition, to place his initials

"in ink opposite the signatures of those persons shown by the

registration books to be legal voters" is directory to the extent

that initialing the signatures with a common lead pencil is a

sufficient compliance with the law, in view of the liberal

construction accorded election laws, the law not declaring a

signature invalid for failure to use ink.

SAME - REQUIREMENTS - FORM OF PETITION. For the same reasons.

Id., SS 4971-9, prescribing the form of the petitions, in so far

as it declares that petitions shall consist of sheets with

numbered lines for not more than twenty signatures on each sheet,

is directory, in so far as may be considered as limiting the

number of signatures that may be placed on any petition.

SAME - FORM OF PETITIONS - BLANK LINES - EVIDENCE OF FRAUD.

The fact that the local certifying officer initialed blank lines

on such

           STATE EX REL. CASE v. SUPERIOR COURT.      627
 Sept. 1914          Opinion Per PARKER, J.

a petition, upon which some names were signed, is not of itself

such conclusive evidence of fraud on the part of the certifying

officer as to authorize the rejection of the duly initialed

signatures upon such a petition.

MAIN, GOSE, and CHADWICK, JJ., dissenting.

Certiorari to review judgments of the superior court for
Thurston county, Mitchell and Claypool, JJ., entered
September 3, 1914, upon appeals from the decisions of the
secretary of state, upon canvassing the returns for the
submission of initiative measures at the general election.
Affirmed as to initiative measures Nos. 8, 9, and 12; reversed
as to Nos. 7 and 10.

Teats, Teats & Teats, E.G. Mills, and Malcolm Douglas,
for Lucy R. Case, and for I. M. Howell, secretary of state,
in cause No. 1287.

The Attorney General and E. W. Allen, Assistant, for
I. M. Howell, secretary of state, in all the causes.

Kerr & McCard and Frank C. Owings, for interveners and
defendants in causes Nos. 12284 to 12287 inclusive, and for
relator Sims in cause No. 12289.

PARKER

PARKER, J. - The relators in these cases seek in this court
review and reversal of the judgments of the superior court
of Thurston county, rendered upon appeals from the decision
of the secretary of state upon the questions of submitting to
the voters of the state, at the general election of the present
year, initiative measures numbered 7, 8, 9, 10, and 11,
petitions for which have been filed in his office. The cases are
so related in their presentation of questions that for
convenience they were, by stipulation, tried at the same time, before
the two trial judges for Thurston county, though each judge
considered the cases assigned to his department of the trial
court and rendered judgments therein separately, as if
sitting alone. This resulted in Judge Claypool rendering
judgments in the cases involving initiative measures numbered 7,
8, and 12, and Judge Mitchell rendering judgments in cases

 628    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

involving initiative measures numbered 9 and 10. The cases
come here upon separate writs of certiorari, but are all
presented by one set of briefs, and have all been argued together.

The contentions of counsel relate to a number of alleged
forged and fraudulent signatures upon the petitions, which,
it is insisted, should be rejected as invalid signatures, and
also, to alleged defects and irregularities in certifying and
verifying as proper signatures a number of the names upon
the petitions, which, it is insisted, should be rejected. The
main problem is, Does the number of valid, properly verified
signatures upon the petitions for each of these initiative
measures exceed 31,836, which is conceded to be the required
number to authorize the submission of initiative measures to
the voters at the general election of the present year?

At its session of 1913, the legislature passed an act to
facilitate the operation of our constitutional amendment
adopted in 1912, relating to the initiative. Laws 1913, p.
418 (8 Rem. & Bal. Code, SS 4971-1 et seq.). This law,
interpreted in the light of the constitutional provision it was
enacted to facilitate the operation of, is to guide us in the
solution of the problem here presented. It prescribes the
duty and power of certain specified local officers touching the
verifying of names appearing upon the petitions as being
the signatures of legal voters, before the filing of the
petitions with the secretary of state; and also prescribes the duty
and power of the secretary touching the canvass and
counting of the names of certified legal voters upon the petitions,
after the filing of them in his office. These respective powers
and duties of the local certifying officers and the secretary
it will be well to have before us at the outset, to the end
that we may the more readily and without repetition note, as
we proceed, not only what these respective powers are, but
also how they are to be exercised independent of each other,
and in the absence of prescribed revisory powers on the part
of the secretary of state over the decisions of the local
certifying officers touching the particular questions submitted to

          STATE EX REL. CASE v. SUPERIOR COURT.          629
 Sept. 1914          Opinion Per PARKER, J.

them for decision. Section 5 (3 Rem. & Bal. Code, SS 4971-5),
of the law prescribes the form of petitions for initiative
measures to be substantially followed, which are to be signed
by the voters, including the form of verification attached
thereto, reading as follows:

"I, the undersigned, hereby certify that I am the officer of
the city (town or precinct) of ........ county of .........
State of Washington, having the custody of the registration
books containing the signatures, addresses and precincts of
the registered legal voters of said city (town or precinct);
that I have carefully compared the signatures on the
foregoing petitions with said registration books, and the
signatures on the petitions opposite which I have written my
initials are the signatures of legal voters of the state of
Washington.

"Dated the ...... day of .......... , 19 ....
                          .................................
                    "(Seal) of the city (town or precinct) of
                          .................................
                         "By ................ Deputy."

This form, it will be noticed, applies only to petitions
signed by voters residing in precincts where there is
registration of voters. For certification of petitions signed by
voters residing in precincts where there is no registration of
voters, SS 8 of the law (13 Rem. & Bal. Code, SS 4971-8),
provides:

"Blank petitions for circulation in precincts where
registration of voters is not required shall bear certificates, in
lieu of those contained in the foregoing forms, to be signed by a
justice of the peace, road supervisor, member of a school board
or a postmaster, to the effect that he resides in the precinct,
naming it, and is acquainted with the legal voters thereof and
that he believes the signatures opposite which he has written
his initials are the signatures of legal voters of such
precinct."

The duty and power of the local certifying officers is
prescribed by SS 10 of the law (3 Rem. & Bal. Code, SS 4971-10),
as follows:

 630    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

"Every initiative and referendum petition, before it is filed
with the secretary of state as hereinafter provided, shall be
filed with the officer having custody of the registration books
containing the signatures, addresses and precincts of the
registered voters of the city, town or precinct, as the case
may be, where the persons who have signed such petition
claim to be legal voters. Upon the filing of any such petition
it shall be the duty of such officer to forthwith compare or
cause a deputy to compare the signatures, addresses and
precinct numbers on such petition with said registration books.
The officer or deputy making the comparison shall place his
initials in ink opposite the signature of those persons who are
shown by the registration books to be legal voters, and shall
certify upon the last signature sheet of such petition that the
signatures so initialed are the signatures of legal voters of
the State of Washington, and shall sign such certificate and
attach thereto the seal of the registration officer, if such
officer have a seal, and return such petition to the person filing
the same upon demand. The omission to fill any blank shall
not prevent the initialing or certification of any name, if
sufficient information is given to enable the officer, by a
comparison of the signatures to identify the voter. Every such
petition bearing the signatures of persons residing in
precincts where registration of voters is not required, before it is
filed with the secretary of state, shall be submitted to and
initialed and certified by a justice of the peace, road
supervisor, member of a school board or a postmaster residing in
such precinct in the form provided in section 8 of this act."

Upon the filing of the petitions with the secretary of state,
his duty, in so far as it relates to his canvass and count of
the names thereon, is prescribed by SS 15 of the law (3 Rem. &
Bal. Code, SS 4971-15), as follows:

"The secretary of state shall . . . proceed to canvass
and count the names of certified legal voters on such petition.
If he find the same name signed to more than one petition he
shall reject both names from the count. . . . "

There is no other language in the law referring in terms
to the duties of the secretary touching his "canvass and
count" of the names upon the petitions certified by the local
certifying officers, or touching his duties so far as they

           STATE EX REL. CASE v. SUPERIOR COURT.      631
 Sept. 1914          Opinion Per PARKER, J.

relate to his determination of the sufficiency of the petitions so
far as the number of signatures of legal voters thereon is
concerned. If the petitions seek the submission of an initiative
measure to the voters and are sufficient as to number of valid
signatures thereon, the secretary's duty, following his
canvass and count, is prescribed by SS 19 of the law (3 Rem. &
Bal. Code, SS 4971-19), as follows:

"If such initiative petition for submission to the
people shall be found sufficient, the secretary of state shall at
the time and in the manner he certifies to the county auditors
of the various counties the names of candidates for state and
district officers certify to each county auditor the serial
numbers and ballot titles of the several . . . initiative
measures to be voted upon at the next ensuing general election
. . . "

Section 17 of the law (3 Rem.& Bal. Code, SS 4971-17),
provides for review of the decision of the secretary, upon the
question of the sufficiency of the petitions as to the requisite
number of signatures thereon, in the courts, as follows:

"Any citizen who shall be dissatisfied with the determination
of the secretary of state that the petition contains or
does not contain the requisite number of signatures of legal
voters may, within five days after such determination, apply
to the superior court of Thurston county for a citation
requiring the secretary of state to submit said petitions to said
court for examination, and for a writ of mandate compelling
the certification of the measure and petition, or for an
injunction to prevent the certification thereof, as the case may
be, which application and all proceedings had thereunder shall
take precedence over other cases and shall be speedily heard
and determined. No appeal shall be allowed from the
decision of the superior court granting or refusing to grant the
writ of mandate or injunction, but such decision may be
reviewed by the supreme court on a writ of certiorari sued out
within five days after the decision of the superior court, and
if the supreme court shall decide that a writ of mandate or
injunction, as the case may be, should issue, it shall issue such
writ direct to the secretary of state; otherwise, it shall
dismiss the proceedings, and the clerk of the supreme court shall

 632    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

forthwith notify the secretary of state of the decision of the
supreme court."

Section 1, art. 2, of our constitution as amended in 1912
(see Laws 1911, p. 136), guaranteeing the right of initiative
and referendum to the people, prescribes the basis for
determining the requisite number of signatures of voters upon
petitions, and, also, in a measure, other details as to the time
and place of riling petitions and manner of submitting such
measures to the voters or to the legislature, 'as the case may
be. These provisions we need not further notice here, since
no question is involved calling for their examination in
detail; but it is worthy of note, and that we keep in mind as we
proceed, that these initiative and referendum provisions of
our constitution are all embodied in one section, which
contains these words: "This section is self-executing, but
legislation may be enacted especially to facilitate its operation."
It was in compliance with this language that the legislature
passed the act of 1913, the material portions of which we
have above reviewed, declaring, in the title of that act, that
it is "to facilitate the operation of the provisions of SS 1 of
art. 2 of the constitution relating to the initiative and
referendum." Thus there is strongly suggested, in the language
of the constitution and this law, a required liberal construction,
to the end that this constitutional right of the people
may be *facilitated*, and not hampered by either technical
statutory provisions or technical construction thereof,
further than is necessary to fairly guard against fraud and
mistake in the exercise by the people of this constitutional right.

Upon the canvass and count of the names upon the petitions
by the secretary, he rejected from the petitions for each of
these five initiative measures several hundred names
appearing thereon as petitioners, upon the sole ground that such
names were forged and fraudulent. All of these rejected
names were duly certified by the proper local certifying
officers to be "signatures of legal voters," in such manner and
form as to duly evidence, as the law prescribes, the decision

      STATE EX REL. CASE v. SUPERIOR COURT.           633
 Sept. 1914          Opinion Per PARKER, J.

and determination of that fact by such local certifying officers.
The secretary's decision in rejecting these names was in the
main affirmed by the decisions of the superior court, though
Judge Claypool rejected from the petitions many more names
upon this ground than did Judge Mitchell. The secretary
and the superior court evidently arrived at the conclusion
that these names were fraudulently signed to the petitions,
largely from an inspection and comparison of the hand-writing
in which small groups of names appeared. These groups
consisted, apparently for the most part, of two names
containing the same surname, as if a husband might have signed
with his own name and that of his wife, or the wife signed
with her own name that of her husband, though many other
names were considered by the court and the secretary to have
been signed in the handwriting of the same person.
However, the grounds of the decisions of the secretary and of the
superior court upon the question of the fraudulent signing
of these names, and the rejection thereof by them, we regard
as of no consequence whatever here, since we have arrived at
the conclusion that neither the secretary nor the superior
court had any power to determine that these names were not
the valid signatures of legal voters, that question having, by
express provision of the law, been committed for decision to
the specified local certifying officers, and there being no
provision whatever in the law authorizing a review of their
decision by the secretary. He having no such power of review,
the superior court cannot have; in any event, in this
proceeding, it being manifest, as we view the law, that it is the
rulings and decisions of the secretary on questions which are
within his power to decide, and none other, that the courts
are authorized to review.

We will now notice, in order, what we conceive to be the
limitations upon the power of the secretary and the court
in this respect. In approaching the question of the power of
the secretary and of the courts in determining questions
arising incidental to the submission of an initiative measure to

 634    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

the voters, it is to be remembered that we are dealing with a
political and not a judicial question, except only in so far
as there may be express statutory or written constitutional
law making the question judicial. Speaking generally, it
may be said that the legislature might have committed wholly
to administrative officers all questions arising under the law
incidental to the submission of initiative measures to the
people, without any right of review in the courts whatever,
except, possibly, pure questions of law. The determination of
the number of valid signatures upon an initiative petition,
as we view it, calls for the application of the same general
principles of law as in the determination of the number of
votes cast at an election, so far as the power of such
determination is concerned. In the early case of Parmeter v.
Bourne,
8 Wash. 45, 88 Pac. 586, 757, the late Chief Justice
Dunbar, speaking for this court, bold that the superior court
has no jurisdiction of the subject-matter of an action which
seeks to enjoin the removal of a county seat on the ground of
fraud committed in an election determining such question,
resting the holding upon the ground that the question was
purely political, and the determination of the result of such
an election being committed by law to administrative officers
(in that case the county commissioners), the courts, in the
absence of express statute, could not review the determination
of such officers. Among the numerous authorities there
cited and reviewed in support of this doctrine by the learned
chief justice, we find quoted with approval the language of
Justice Campbell of Michigan in Hipp v. Supervisors, 62
Mich. 456, 29 N. W. 77, as follows:

"The questions are not such as the courts have any right
to disturb after they have been disposed of by the only
authority which the law has empowered to act upon them. The
supervisors, at a meeting when all the towns were represented,
by a two-thirds vote, ordered an election to determine upon
the proposed removal of the county seat. This election was
held, and the board determined the result upon a canvass.
That action is conclusive, and no authority exists anywhere

      STATE EX REL. CASE v. SUPERIOR COURT.           635
 Sept. 1914          Opinion Per PARKER, J.

to dispute it. The controversy, which is not in any proper
sense a judicial one, is closed. The constitution has not
empowered this court to settle controversies not judicial, which
are very wisely left to the proper local and representative
agencies of the people."

This doctrine was adhered to in Heffner v. Board of County
Commissioners,
16 Wash. 273, 47 Pac. 430, where Justice
Anders, speaking for the court, observed in conclusion as
follows:

"It appearing that the commissioners have 'received and
compared' the returns, and have found, and properly certified
to, the facts which the statute expressly submitted to them
for determination, we feel constrained to accept their decision
as conclusive upon the courts."

Later decisions of this court plainly show that this
doctrine has not been departed from in this state. Nichols v.
School District, 39 Wash. 137, 81 Pac. 325; Quigley v.
Phelps, 74 Wash. 73, 132 Pac. 738; Mamz v. Wright, ante
p. 358, 142 Pac. 697; 15 Cyc. 393.

This being the law touching the power of the courts to
review and control the actions of canvassing officers, it must
logically follow that canvassing officers, possessing only
statutory powers, cannot review or ignore, in making their
canvass, determinations made by local officers upon questions
expressly committed to them for decision by statute, when the
statute does not give to such canvassing officers any power
to review or ignore such determinations. This is the theory
upon which it is generally held that the duties of canvassing
officers are ministerial, preventing them from going behind
the returns the statute imposed upon them the duty of
canvassing, in the absence of statutes authorizing them so to do.

In State ex rel. King v. Trimbell, 12 Wash. 440, 444, 41
Pac. 183, Chief Justice Hoyt, speaking for the court, said:

"That the duty of canvassing boards is purely ministerial
and confined to tabulating and ascertaining the result of an
election as shown by the face of the returns properly made
out by the election officers is well established upon both

 636    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

reason and authority. The election laws place the responsibility
of determining the result at each election precinct upon the
election officers and leave to the canvassing board only the
duty of ascertaining the result from the returns made by
such officers."
See, also, McCrary, Elections (4th ed.), SSSS 261, 262.

Our attention is called to several decisions of the courts,
including our own, which, it is insisted, show that the
situation here presented is not controlled by this doctrine in so
far as the power of the secretary is concerned. We will now
notice these decisions, so relied upon by counsel who insist
that these names be rejected from the petitions.

In Hindman v. Boyd, 42 Wash. 17, 84 Pac. 609, it was
held that it was the duty of the city council to determine the
qualification of the signers of a petition for the submission of
charter amendments to a vote of the people of the city. The
alleged applicability of this decision to the situation here
involved finds an answer in the language of Justice Hadley,
speaking for the court therein, as follows:

"The statute provides no method for determining the
qualification of the petitioners. It must follow, therefore, that it
lies with the city council, whose action in the premises is
invoked, to determine that question in some reasonable
manner, and within a reasonable time. Clearly the statute does
not intend that the council shall submit the amendment until
the fact exists that the necessary number of qualified voters
have petitioned. Some one must determine that fact, and
under the statute it must lie with the council to pass upon
it in the first instance. It is generally held, under similar
statutes, that it is the duty of the body to whom petitions
for the submission of questions to the voters are presented to
carefully scrutinize, examine, and determine as to the
number and qualification of the signers before putting the
people to the expense of an election. Ayres v. Moan, 34 Neb.
210, 51 N. W. 830, 15 L. R. A. 501; La Londe v. Board of
Supervisors, 80 Wis. 380, 49 N. W. 960; Dutten v. Hanover,
42 Ohio St. 215; State v. Eggleston, 84 Kan. 714,
10 Pac. 3."

      STATE EX REL. CASE v. SUPERIOR COURT.           637
 Sept. 1914          Opinion Per PARKER, J.

This is but the application of a general rule where no
special provision is made by statute for the determination of
the qualifications of the petitioners as voters by some specified
officer or officers other than the officer or body to whom the
petition is addressed, for action thereon. The authorities
there cited plainly so show.

In State ex rel. Chealander v. Carroll, 57 Wash. 202, 106
Pac. 748, it was held, under a charter provision limiting the
right to file declarations of candidacy to those persons "who
shall be eligible" for the office sought, that the city
comptroller had power to inquire into the eligibility of the
candidate so offering to file his declaration, and refuse to file and
certify the same if he be in fact ineligible, the comptroller
being the officer whose duty it was to receive, file, and act
upon such declaration of candidacy, and no other officer
being authorized to determine the question of the candidate's
eligibility.

In State ex rel. Mohr v. Seattle, 59 Wash. 68, 109 Pac.
309, it was held that the city comptroller was the proper
officer to verify the signatures to a petition seeking
submission to the voters of an ordinance under the referendum
provisions of the city charter, reading:

"The city comptroller shall verify the sufficiency of the
signatures to the petition and transmit it, together with his
report thereon, to the city council at a regular meeting not
less than (20) days after the filing of the petition. The city
council shall thereupon provide for the submitting of said
ordinance . . . to the vote of the qualified electors for
ratification or rejection, . . . "
there being no other provision of law or charter touching the
question of who was the proper officer to verify the
signatures to the petition. At page 73, Chief Justice Rudkin,
speaking for the court, said:

"The charter provides that that officer shall verify the
sufficiency of the signatures to the petition, and imposes no
duty whatever upon the city council, except to submit the

 638    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

question to the voters for approval or rejection, at a general
or special election on the comptroller's report."

Thus, it was held, in substance, that the council could not
review or ignore the decision of the comptroller on the
question committed by the charter to him for decision, to wit, the
genuineness of the signatures as being those of qualified
voters. Just as the power of the council was there limited
by the authority conferred on the comptroller, so is the power
of the secretary here limited by the express power the
statute confers upon the local certifying officers to determine the
question of the names upon the petitions being the signatures
of legal voters.

In State v. Olcott, 62 Ore. 277, 125 Pac. 303, and State
ex rel. Hill v. Olcott (Ore.), 185 Pac. 902, the supreme court
of Oregon held that the secretary of state is charged with
the official duty in the first instance to determine whether the
signatures upon initiative and referendum petitions arc
signatures of legal voters, though we are unable to see from
the language of these decisions that the power of the
secretary in this respect was therein challenged. However, the
Oregon law does not provide for the verifying and determination
of the genuineness of the signatures as being those of
legal voters, by any other official than the secretary, as ours
does. It is true that, under the Oregon law, the petitions
are to be verified in this respect by an accompanying
davit of a private individual to the effect: "I believe that
each [signer] has stated his name, post office address, and
residence correctly, and that each signer is a legal voter of
the state of Oregon." But that is not an official
determination of the genuineness of the signature, nor of the
qualification of the signer as a legal voter. So far as applicable
to this question, the following decisions, relied upon by counsel
seeking the rejection of these names, are distinguishable from
the cases before us in this same way: Woodward v. Barbur,
59 Ore. 70, 116 Pac. 101; In re Initiative Petition No.

          STATE EX REL. CASE v. SUPERIOR COURT.          639
 Sept. 1914          Opinion Per PARKER, J.

35 Okl. 49, 127 Pac. 862; State ex rel. Topping v. Houston,
94 Neb. 445, 148 N. W. 796.

We have noticed that the whole duty of the secretary is
prescribed, so far as his canvass and count of the names is
concerned, in these words of the statute: He shall "proceed
to canvass and count the names of certified legal voters on
such petition. If he find the same name signed to more than
one petition, he shall reject both names from the count."
Having in mind an elementary rule of statutory construction,
the special authority here given the secretary to reject
duplicate signatures upon different petitions of itself
suggests almost conclusively a limitation of power on the part
of the secretary to reject names for any other cause, when
they are determined to be "signatures of legal voters" by
the local certifying officers, and such determination is
evidenced by such officers' certificate in the manner prescribed
by the law. If it be necessary to look for a reason for
conferring this special power upon the secretary, it may be
readily found in the fact that he is the first officer to whom
all the petitions are presented together when is furnished the
first opportunity of determining the number of such duplicate
signatures, if any, upon *different* petitions. It is significant
that it is "the same name signed to more than one petition"
that the secretary is especially authorized to reject. Why
this special authorization to reject this certain class of
fraudulent signatures, which manifestly is not within the province
of the local certifying officer to reject, since he certifies only
that the signatures upon a particular petition are the
natures of legal voters," if he so determines them to be?

Section 12 of the law provides:

"The secretary of state upon any such petition being
submitted to him for filing shall examine the same, and if upon
examination said petition appear to be in proper form and
to hear the requisite number of signatures of legal voters,
. . . the secretary of state shall accept and file said petition
in his office; otherwise, he shall refuse to file the same,

 640    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

. . ." Laws 1913, p. 424, SS 12 (3 Rem. & Bal. Code,
SS 4971-12).

While the word "petition" is here used in the singular, it
manifestly means all of the petitions assembled as one, since
the secretary so deals with them. Section 13 of the law
(3 Rem. & Bal. Code, SS 4971-13), provides for review of
this preliminary decision of the secretary touching the filing
of the petition in his office, should he refuse to file the
petition, in the courts. No question is raised here involving this
preliminary decision of the secretary. He accepted and filed
all of the petitions tendered for these initiative measures.
Our attention is directed to this portion of the law in
connection with that portion above reviewed, relating to the
final decision of the secretary and review thereof in the
courts, with a view of inducing such a construction of the
law as a whole as will broaden the field of inquiry of the
secretary upon his final determination touching the sufficiency
of the petition and the number of valid signatures thereon,
so as to include the question of the names upon the petition
being "signatures of legal voters." The argument seems to
be that, unless it be held to be the legislative intent that the
power of the secretary is not thus broadened, there would
have been no provision for this preliminary decision touching
the sufficiency of the petitions as to the number of
signatures. We cannot assent to this view. The preliminary
inquiry and decision of the secretary is manifestly only
tentative. The questions he is then to consider and decide in a
mere preliminary tentative way are the same questions he
is to decide upon a more thorough and detailed examination
of the petitions. The legislative thought manifestly was
to provide an expeditious manner of review and correction
of any erroneous decision made by the secretary touching
both the filing of the petitions, if he should refuse to file them,
and also, thereafter, the submission of the measures to the
people. Here are two stages at which the will of the people
might be defeated by an erroneous decision of the secretary.

      STATE EX REL. CASE v. SUPERIOR COURT.           641
 Sept. 1914          Opinion Per PARKER, J.

This, we think, is simply a method of providing for a speedy
remedy in each of these instances. We think it manifest the
legislative intent was to not have the question of the right
to merely file the petitions hampered by anything more than
a superficial examination of them, such as could be readily
and quickly made by the secretary. But this, we think, is
not a convincing argument that the secretary's inquiry upon
his final determination is broadened to include the decision
of questions expressly committed for decision to the local
certifying officer, when no review of such decision is
provided for. The situation may be likened to that confronting
a court in a case presenting the question of a preliminary
injunction and thereafter a permanent injunction or the
refusal thereof. The jurisdiction of the court, so far as the
scope of its inquiry is concerned, is not different in the two
instances, the only difference being that the first is a
preliminary decision more or less tentative, rendered so by the
necessities of such cases, while the last is final.

It is insisted that the word "canvass" as here used in
connection with the duties of the secretary to "scrutinize,
examine, and determine," using the language of learned
counsel for the opponents of the measures, makes his duties much
more than merely to count the names upon the petition, and
that, unless we hold he has power to determine the question
of the names upon the petition being the "signatures of legal
voters," we will unduly limit the meaning of the word
"canvass" as used in connection with the secretary's duties. We
may concede that the word canvass is well expressed in the
words "scrutinize, examine, and determine," but scrutinize,
examine, and determine what? The answer is, the things
which the law has committed to his determination, not the
things which the law has expressly committed to the
decision of other officers. Counsel seem to think that to
withhold from the secretary the power to decide the question of
the names upon the petition being the "signatures of legal

 642    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

voters," there is nothing of consequence left for him to
scrutinize, examine, and determine. Even if this were true,
we think it would not be a convincing argument in favor of
holding the secretary's power broad enough to authorize
him to decide questions expressly committed for decision to
the local certifying officers. But the assumption, we think,
is not correct. For instance, the secretary is expressly
authorized to reject a name 'signed to more than one
petition?' This surely authorizes him to scrutinize and examine
the petitions incident to the determination of that question.
The same may be said of other questions he may be called
upon to decide, such as the genuineness of the signature of
the certifying officer, the forging of such officer's initials
opposite to petitioner's name, and the sufficiency of the
certifying officer's certificate as to form and substance, as well as
other questions which might be suggested. Several of these
very questions were in fact decided by the secretary in his
"canvass and count" of the names upon these petitions.
Manifestly, in the light of these plain duties of the secretary,
it becomes wholly unnecessary to look further for duties for
him to perform in order to give to the words "canvass and
count" full force and effect.

We have seen that objection by appeal to the courts must
he taken within five days following the secretary's decision
upon the sufficiency of the petition as to the number of
signatures. His decision upon the petition for initiative
measure No. 9 was that there were fourteen valid signatures
thereon in excess of the required 31,836. Relator Sims appealed
therefrom to the superior court. Lucy Case, representing
the advocates of this measure, was permitted to intervene in
the superior court. In doing so, she set up the claim that
the secretary had erroneously rejected from the petitions for
this measure several hundred names, upon the sole ground
that such signatures were forged and fraudulent. This
objection in behalf of the advocates of this measure came more
than five days after the secretary's decision, but promptly

          STATE EX REL. CASE v. SUPERIOR COURT.          643
 Sept. 1914          Opinion Per PARKER, J.

after the case came into the superior court. It is now
contended that this objection cannot be considered because
coming too late by reason of the five-day limitation of the
statute. We think the answer to this contention is found in the
fact that the advocates of this measure had no occasion to
appeal to the courts from the decision of the secretary upon
this or any other ground, since his decision as a whole was
favorable to their position and would result in placing the
measure before the people, if unreversed. That the advocates
of this measure had the right to be heard in court in
opposition to the contentions of its opponents, we think must be
conceded. Their rights in court were, in substance, those of
defendants and, we think, such as to entitle them to have
offset against any errors which might have been committed
by the secretary in favor of submitting the measure, any
errors which he might have committed tending to defeat the
submission of the measure. The fact that this objection on
behalf of the advocates of the measure is put forward merely
by way of defense, we are of the opinion renders the
five-day limitation prescribed in the statute wholly inapplicable
thereto; and if the secretary erroneously rejected these names
from the petitions for this measure, the advocates have the
right to have them now restored thereto, to make up for any
deficiencies which might have occurred by reason of the
rightful rejection of names by the secretary.

We conclude that the secretary of state is without
authority to inquire into or decide the question of the names upon
the petitions being the "signatures of legal voters," in the
light of the express provisions of the statute committing that
question for decision to local certifying officers, and that
when a local certifying officer has decided that names upon
the petition are the signatures of legal voters, and has
evidenced his decision by proper certificate in the manner
provided by law, his decision is absolutely final so far as the
power of the secretary of state to ignore or review the same
is concerned.

 644    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

It is contended that, even though the secretary of state is
bound by the decision of the local certifying officers on the
question of the names upon the petition being the signatures
of legal voters, the superior court is not so bound, but may
review the question upon appeal from the secretary.
Viewing the proceeding in the superior court as, in substance,
an appeal from the secretary's decision, as it may well be
argued the statute contemplates, it is difficult indeed to see
how it involves errors of either law or fact committed by any
other officer than the secretary. Viewed in such light, it is
quite clear that the proceeding would be to correct his rulings
and decisions if erroneous, and not those of any other
officer or officers. Treating the proceeding in the superior
court as an original action therein, there might be furnished
some ground for contending that the court's inquiry could
extend beyond the questions to be decided by the secretary.
In In re Initiative Petition No. 23, supra, the court seems
to have entertained the view that the proceeding was in the
nature of an original action, under a review statute similar
to ours. We have already noticed, however, that this is a
political question, purely so, in so far as questions of fact
are involved, and that the courts have jurisdiction over it
only in so far as statute or written constitutional law
prescribes. The Oklahoma court was not confronted with an
express statutory provision committing the decision of the
question of the names upon the petitions being the
"signatures of legal voters" to any special officer or class of
officers. It was not confronted with any statutory provision
providing for an official determination of such question by
local administrative officers with no provision for review of
their determination, as is provided for in this statute. But
that court was reviewing, by express statutory authority, the
decision of the secretary of state of Oklahoma upon matters
including this very question, the court proceeding upon the
theory that it was one of the questions within the secretary's
power to decide under their statute. We think this court

      STATE EX REL. CASE v. SUPERIOR COURT.           645
 Sept. 1914          Opinion Per PARKER, J.

proceeding limits the court's inquiry to questions the
secretary has power to decide, and his errors.

Some contention is made against the finality of the
determination of the local certifying officers, rested upon the
fact that there seems to be no special provision of the law
requiring such officers to return their certificates to the
secretary. We are of the opinion, however, that this does not
change the fact that such local officers' decisions are their
official acts and decisions, and that their certificates are the
prescribed official evidence of their decisions. In this
connection, some contention is also made against the finality of
the decisions of the local certifying officers in nonregistration
precincts. This apparently is rested upon the fact that
the prescribed form of the certificate for such officer to make
is that he "Is acquainted with the legal voters thereof [a
precinct] and that he believes the signatures opposite which he
has written his initials are the signatures of legal voters of
such precinct." The argument seems to he that, because the
decision of such local officer is expressed in the form of
belief, its force and effect as an official decision is lessened. We
are unable to agree with this view. In its last analysis, that
is all that the decision of any court or tribunal amounts to.
The official determination of a question by a court or tribunal
is but the conclusion which he or it believes to be the correct
one. In the vast majority of cases, it can of necessity
amount to nothing more. We are of the opinion that the
determinations made by local certifying officers, as prescribed
by this law, have all the force and effect of official
determinations of such officers, whether they relate to registration
or nonregistration precincts.

The penal provisions of this law are very severe; set forth
in detail and with manifestly great care. They are directed
to the signers of petitions, the certifying local officers, and
even those who circulate petitions soliciting signatures
thereon for pay. So far as safeguarding the operation of a law
by severe and painstaking prescribed penal provisions is

 646    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

concerned, this law has been, we think it safe to say, seldom
exceeded in this respect. Among other provisions therein we
find, in SSSS 31 and 32 (3 Ram. & Bal. Code, SSSS 4971-31,
4971-32), the following:

"Every person who shall sign any initiative or referendum
petition provided for in this act with any other than his true
name shall be guilty of a *felony*. Every person who shall
knowingly sign more than one of such petitions for the same
measure or who shall sign any such petition knowing that
he is not a legal voter or who shall make on any such petition
any false statement as to his place of residence, and every
registration officer who shall make any false report or
certificate on any such petition shall be guilty of a *gross
misdemeanor* . . . every person who shall for . . . who shall
pay or any consideration, compensation, gratuity, reward
or thing of value or promise thereof, circulate or solicit,
procure or obtain or attempt to procure or obtain signatures
upon any initiative or referendum petition; or who shall pay
or offer or promise to pay, or give or offer or promise to
give any consideration, compensation, gratuity, reward or
thing of value to any person to induce him to sign or not to
sign, or to circulate, or solicit, procure or attempt to
procure or obtain signatures upon any initiative or referendum
petition . . . shall be guilty of a *gross misdemeanor*."

Section 5 (3 Rem. & Bal. Code, SS 4971-5), provides that
warning as to these penalties be printed on every petition.
Surely these provisions evidence an intent on the part of the
legislature to make them the only safeguards looking to the
prevention of fraud, forgery, and corruption, in the exercise
of this constitutional right by the people, except in so far
as the legislature has provided for correct{on of erroneous
rulings and decisions by officers having to do with the
execution of the law. The question being inherently political, the
legislature had the right, and evidently intended to provide,
these penal provisions as the sole safeguards for the proper
operation of the law, except wherein it has specifically
provided other safeguards. The legislature might well have
concluded that the possibility of fraud and wrong on the

      STATE EX REL. CASE v. SUPERIOR COURT.           647
 Sept. 1914          Opinion Per PARKER, J.

part of signers and local certifying officers, and the
possibility of invalid signatures thereby getting upon the
petitions, was not of such consequence as to call for other
safeguards and sanction of the local certifying officers'
decisions than these penal provisions of the law. Clearly the
legislature was not required to go further, and we think it has
not done so. We conclude, in view of these considerations, that
the superior court had no power to review the determination of
the local certifying officers upon the question of the names upon
the petition being the signatures of legal voters, when so
decided and evidenced by the certificates of such officers, as the
law requires. The decisions we have above cited and
reviewed we think lend all the support necessary to this
conclusion.

A large number of names upon the petitions were initialed
by the local certifying officers in common lead pencil instead
of ink, as the statute in terms provides they shall be. These
names were rejected by the secretary. Both judges of the
superior court reversed the secretary upon this point, and
counted the names so initialed. It is contended by counsel
for the advocates of the measure that the law is only directory
upon this subject, and that the initial by pencil by the
certifying officers is a substantial compliance therewith; while
counsel for the opponents of the measure contend to the
contrary, and that these names should be rejected. The general
rule of construction, determinative of whether any particular
provision of the statute is mandatory or directory, is well
stated in the text of 36 Cyc. 1158, as follows:

"A provision of course is mandatory which is declared by
the statute itself to be so. When a particular provision of
a statute relates to some immaterial matter, as to which
compliance with the statute is a matter of convenience rather
than substance, or where the directions of a statute are given
merely with a view to the proper, orderly, and prompt
conduct of business, the provision may generally be regarded as
directory."

 648    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

This law contains no provision declaring that the
initialing by means other than ink renders a signature upon the
petition so initialed invalid. In 2 Lewis' Sutherland's
Statutory Construction (2d ed.), SS 611, the learned author
observes:

"There is no universal rule by which directory provisions
may, under all circumstances, be distinguished from those
which are mandatory. Where the provision is in affirmative
words, and there are no negative words, and it relates to the
time or manner of doing the acts which constitute the chief
purpose of the law, or those incidental or subsidiary thereto,
by an official person, the provision has been usually treated
as directory. Generally, it is so; but it is a question of
intention. Where a statute is affirmative it does not necessarily
imply that the mode or times mentioned in it is exclusive, and
that the act provided for, if done at a different time or in a
different manner, will not have effect. Such is the literal
implication, it is true; but since the letter may be modified to
give effect to the intention, that implication is often prevented
by another implication, namely, that the legislature intends
what is reasonable, and especially that the act shall have
effect; that its purpose shall not be thwarted by any trivial
omission, or a departure from it in some formal, incidental or
comparatively unimportant particular."

In Duncan v. Shenk, 109 Ind. 26, 30, 9 N. E. 690, it is
said:

"It is also a well recognized principle of statutory
construction, that election laws are to be liberally construed
when necessary to reach a substantially correct result, and to
that end their provisions will, to every reasonable extent, be
treated as directory rather than mandatory."
See, also, McCrary, Elections (4th ed.), 227; Willeford
v. State, 43 Ark. 62; State ex rel. Mullen v. Doherty,
16 Wash. 382, 47 Pac. 958, 58 Am. St. 39.

Our attention is called to our decisions in State ex rel.
Czerny v. Superior Court, 70 Wash. 592, 127 Pac. 207,
and State ex rel. McCauley v. Gilliam, ante p. 186, 142 Pac.
470. These decisions, however, deal with statutes which are

          STATE EX REL. CASE v. SUPERIOR COURT.          649
 Sept. 1914          Opinion Per PARKER, J.

in express terms in the particular involved declared to be
mandatory. 'In the Czerny case, the statute expressly
provided: "No signature shall be valid unless the above
requirements are complied with." In the McCauley case, the
statute expressly provided: "Until such statement is filed
the officer shall refuse to receive such petition," referring to
the required filing of a statement in connection with a recall
petition. Of course, those provisions are mandatory, and a
failure to do the things required by the express terms of the
statute was fatal.

In State ex rel. Waggoner v. Russell, 34 Neb. 116, 51
N. W. 465, 33 Am. St. 625, 15 L. R. A. 740, there was
involved the validity of a ballot marked by the voter with a
cross in pencil, when the statute in terms provided that "the
elector . . . shall prepare his ballot by marking in the
appropriate margin or place a cross (X) with ink opposite
the name of the candidate of his choice . . ." The statute
contained no provision declaring a ballot so marked in
pencil void. The court held the statute directory in this
regard, and the marking of the ballot by pencil to be valid,
entitling the voter to have it counted. The question is there
ably reviewed at considerable length. The following
decisions, relating to particular cases, support this view:
Montgomery v. Henry, 144 Ala. 699, 89 South. 507, 1 L.
R. A. (N. S.) 656, dealing with statutory required
numbering of ballots in ink where ballots were left unnumbered;
Perkins v. Bertrand, 192 Ill. 58, 61 N. E. 405, 85 Am. St.
815, dealing with statutory required initialing of ballots
where only one initial is used, the statute requiring the
indorsement of election officials' "initials" thereon; Truelsen
v. Hugo, 87 Minn. 189, 91 N. W. 434, dealing with
statutory required initialing of ballots where they were left
uninitialed by the election officers; McClelland v. Erwin, 16
Okl. 612, 86 Pac. 283, dealing with statutory required
stamping of a cross by the elector upon his ballot to evidence
his choice where he marked a cross with a pencil; Slenker

 650    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

v. Engel, 250 Ill. 499, 95 N. E. 618, dealing with a ballot
marked with a broken pencil or some similar instrument
which left only an indentation mark of a cross upon the
paper but no color. We conclude that the statute is
directory to the extent that initialing in lead pencil is a
substantial compliance therewith, and that the names upon the
petition so initialed, when otherwise properly certified,
should be counted.

Section 9 of the law (3 Rem. & Bal. Code, SS 4971-9),
provides that the petition shall consist of sheets "with numbered
lines for not more than twenty signatures on each sheet."
There is no other provision of the law touching the question
of the manner of signing the petitions. A number of sheets
in these petitions contained more than twenty names on
them, resulting in names not being upon the numbered
lines. Many names were rejected by the secretary because
of this irregularity. The decision of the secretary upon
this point was affirmed by Judge Claypool and reversed by
Judge Mitchell. We think the provision of the law
prescribing the form of petitions, in so far as it relates to the
number of lines thereon, is directory, in so far as it may be
considered as thus prescribing the number of signatures that
must be upon the petition. What we have already said upon
the question of directory statutory provision we think is
decisive of this question in requiring these rejected names to
be counted.

Names were rejected from a number of the petitions by
the secretary because the local certifying officers initialed
blank lines thereon where no petitioner's name appeared.
The secretary seems to have proceeded upon the theory that
this initialing of blank lines was of itself such conclusive
evidence of fraud on the part of the certifying officer as
warranted the rejection of all names upon petitions where the
initialing of blank lines occurred, especially where such
initialing occurred upon several blank lines. It is conceded
that there was no other evidence of fraud touching these

      STATE EX REL. CASE v. SUPERIOR COURT.           651
 Sept. 1914          Opinion Per PARKER, J.

petitions. Judge Mitchell reversed the decision of the
secretary upon this point, while Judge Claypool affirmed his
decision. We are constrained to hold that the names upon such
petitions which were duly initialed and certified should not
be rejected because of this initialing of blank lines on such
petitions. It is suggested that this involves a question of
fact as to which the secretary's decision is conclusive, in the
absence of fraud or manifest bad faith on his part, with
which he is not charged here. On the contrary, his good
faith and honesty of purpose in deciding all questions
presented to him is freely conceded by all concerned. While we
may concede that the decision of the secretary upon a
question of fact, in the absence of fraud or bad faith on his
part, is conclusive upon the courts, we are nevertheless of
the opinion that the mere fact of excessive initialing as here
shown must be held, as a matter of law, not of sufficient
weight as evidence to warrant the conclusion that the
initialed and certified names upon such petitions were
fraudulently or illegally initialed by the local certifying
officers. We conclude that these initialed names should be counted
where otherwise properly certified by the local certifying
officers.

Finally, we conclude that there should be restored to these
initiative petitions, and treated as valid certified signatures
of legal voters thereon, the names which have been
erroneously rejected therefrom, belonging to the classes we have
above noticed and discussed, to wit:

(1) Names rejected as being forged and fraudulently
signed to petitions which are duly certified by the local
certifying officers as the "signatures of legal voters."

(2) Names initialed in lead pencil by the local certifying
officers and otherwise duly certified by them to be the
"signatures of legal voters."

(3) All names on sheets of the petitions containing more
than twenty names, some of the names not being on the lines,
which names are properly initialed and otherwise duly

 652    STATE EX REL. CASE v. SUPERIOR COURT.
                Opinion Per PARKER, J.           81 Wash.

certificate by the local certifying officers to be the "signatures
of legal voters."

(4) Names on petitions containing initialed blank lines,
in so far as such names are duly initialed and otherwise
properly certified by the local certifying officers to be the
"signatures of legal voters."

The number of such signatures so rejected, when
stored to the several petitions, will, in our opinion, result
in making the number of valid signatures upon each of the
following petitions for initiative measures in excess of the
required 31,836, to wit:

(1) The petition for initiative measure No. 7, relating
to the bureau of inspection.

(2) The petition for initiative measure No. 8, relating to
employment agencies.

(3) The petition for initiative measure No. 9, relating
to first aid to injured workmen.

(4) The petition for initiative measure No. 10, relating
to public highways.

The number of the four classes of rejected signatures we
have discussed, when restored to the petition for initiative
measure No. 12, relating to the tax commission, will not, in our
opinion, furnish that petition with sufficient valid signatures
to make the total valid signatures thereon equal to the
required 31,836. Our opinion touching the insufficiency of the
petitions as to the number of signatures thereon for this
measure is influenced to a considerable extent by the presumption
which, of course, prevails in favor of the correctness of the
decision of the secretary and the superior court. We may
say that there is room for argument upon this question for
and against the rejection of certain names originally upon
this petition, other than those which our conclusions above
set forth would restore thereto. As we are of the opinion
that the decision we might arrive at touching the other
questioned names upon this petition would not result in
making the total of the names upon the petition equal the

           STATE EX REL. CASE v. SUPERIOR COURT.      653
 Sept. 1914          Dissenting Opinion Per MAIN, J.

required 81,886, we deem it unnecessary to further pursue
our inquiry touching this petition, and the necessity of
haste forbids that we Lake further time for discussion
relative thereto.

Since our decision is to be given effect through direct
communication thereof to the secretary of state, instead of
through the usual remittitur to the superior court, it is
ordered that the secretary of state submit to the voters, as
required by law at the general election of the present year,
initiative measures No. 7, relating to the bureau of
inspection; No. 8, relating to employment agencies; No. 9, relating
to first aid to injured workmen, and No. 10, relating to
public highways. The clerk of this court is directed to notify
the secretary of state of this decision, in compliance with
the concluding language of SS 17 of the law.

CROW, C.J., ELLIS, MOUNT, and FULLERTON, JJ., concur.

MAIN, J. - I am unable to concur with the
view expressed in the majority opinion that the finding of
the local certifying officer is final and conclusive and not
subject to review. What may be the scope of the power of
the secretary of state is not involved in these cases. The
causes are here for review upon judgments of the superior
court. When either the proponents or the opponents of a
measure are dissatisfied with the action of the secretary of
state, they may bring the matter before the superior court
for a trial and determination. Upon this trial the court has
the power to determine all questions of law and fact that
may arise, the same as in any other action. The statute
provides that, by certiorari, the judgment of the superior
court may be reviewed by this court. To determine the
questions presented upon the various measures which are
involved would require a detailed examination of the record
in each case. This would consume possibly a week's time
and unnecessarily delay the decision, since the majority
opinion would prevail in any event.

 654    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per GOSE, J. 81 Wash.

-Dissenter-

GOSE
-Dissenting_Opinion-

GOSE, J. - The majority opinion is predicated
upon what I conceive to be two fundamental errors. First,
that the certificate of the certifying officer, if it substantially
conforms to the requirements of the statute, has absolute
verity and finality; and second, that neither the secretary of
state nor the courts have the power to purge the petitions of
fraudulent signatures.

Both the secretary of state and two trial judges, after an
exhaustive and painstaking examination of the petitions (the
latter aided by an expert in handwriting), have found that
the petitions are honeycombed with fraudulent signatures.
With these signatures eliminated, most of the petitions are
short of the number required by the constitution to place
them before the people, and yet the majority say, in effect,
that a fraudulent petition is cleansed of its sins if properly
certified, and that the people are without recourse other than
to enforce the penal provisions of the statute. I cannot
acquiesce in so monstrous a doctrine. In its last analysis, it
means that one man can collude with a certifying officer, if he
can find one sufficiently corrupt, write sufficient names upon
the petition to satisfy the mandate of the constitution, have
it certified, and that neither the secretary of state, who is
charged with expending the public money in placing the
measure before the people, nor the courts, may go behind the
return and proclaim and condemn the fraud. It is a rule of
universal application that an interpretation of a statute
which leads to absurdities should be avoided. As was aptly
said by Judge Claypool in an opinion filed in the court below,
"People who propose to make new laws are not wronged by
being required to observe the laws already in existence."
Fraud in the initiation of a law to be submitted to the people
is as ugly and unclean as fraud in a contract, and all courts
hold that a contract conceived in fraud may be avoided by the
party who has been defrauded. The parties who have been
defrauded in the case at bar are the taxpayers from whom
the money has been taken to place before the people an initiative

           STATE EX REL. CASE v. SUPERIOR COURT.      655
 Sept. 1914          Dissenting Opinion Per GOSE, J.

five measure which is short of the constitutional number to
authorize it to be submitted, except by counting the
fraudulent signatures.

Recurring to the constitutional amendment which
authorizes the initiative and referendum (Laws 1911, p. 186, SS 1,
subd. a) we find that "ten per centum, and in no case more
than fifty thousand, of the legal voters shall be required to
propose any measure by such petition." Subdivision d
provides that "this section is self-executing, but legislation may
be enacted especially to facilitate its operation." To
facilitate its operation how ? Obviously by requiring all petitions
to be signed by the constitutional number of legal voters.
The number of legal voters fixed by the constitution for
placing an initiative measure before the people for adoption or
rejection is an express limitation upon the power to legislate by
the initiative.

The legislative branch of the government has appropriated
$300,000, or as much thereof as may be necessary, to be used
by the secretary of state in paying the expenses of "clerk hire,
postage, transportation and printing necessarily incurred in
carrying out the provisions of the statutes with reference to
the initiative and referendum and the recall of elective public
officers of the state." Laws 1913, p. 417.

Laws 1913, p. 418, prescribes the method of initiating and
submitting proposed measures to the people. Section 8
provides, among other things, that petitions for circulation in
nonregistration districts may be certified by "justice of the
peace, road supervisor, member of a school board or a
postmaster, to the effect that he resides in the precinct, naming
it, and is acquainted with the legal voters thereof and that he
believes the signatures opposite which he has written his initials
are the signatures of legal voters of such precinct." Section
11 provides that when the "signatures of legal voters" equal
to the minimum number fixed by the constitution have been
obtained, the petition may be submitted to the secretary of state
for filing in his office. Section 12 provides that the secretary

 656    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per GOSE, J. 81 Wash.

of state, upon any such petition being submitted to him for
filing, shall "examine the same, and if upon examination said
petition appear to be in proper form and to bear the requisite
number of signatures of legal voters," shall "accept and file"
the same if presented within the time limited by the statute.
Section 13 provides for a review by the court if the secretary
of state shall refuse to "file any such initiative or
referendum petition when submitted to him for filing." It further
provides that, upon final hearing, if the court shall determine
that the petitions are "legal in form and apparently contain
file requisite number of signatures, and were submitted for
filing within the time prescribed in the constitution," it shall
require the same to be filed by the secretary of state as of the
date of its submission. It further provides that the decision
of the superior court may be reviewed by this court upon a
writ of certiorari, and that if the supreme court shall decide
the petitions are "legal in form and apparently contain the
requisite number of signatures of legal voters, and were filed
within the time prescribed in the constitution" it shall
require the secretary of state to file the petition. Section 15
provides that, after the petitions have been filed, the
secretary of state shall forthwith, in the presence of at least one
person representing the advocates and one person
representing the opponents of the proposed measure, should either
desire to be present, proceed to "canvass and count the
names of certified legal voters" on such petition; that if
he finds the same name signed to more than one petition he
shall reject both names from the count, and that if, at the
conclusion of the "canvass and count," it shall appear that
such petition bears the requisite number of names of
"certified legal voters," the secretary shall cause the same to be
submitted to the people in the method provided by the
statute. Section 17 provides that any citizen who shall be
dissatisfied with the determination of the secretary of state that
the petition "contains or does not contain the requisite
number of signatures of *legal voters*" may apply to the superior

               STATE EX REL. CASE v. SUPERIOR COURT.     657
 Sept. 1914          Dissenting Opinion Per GOSE, J.

court of Thurston county for a citation requiring the
secretary to submit the petitions to the court for examination.
It further provides that the decision of the superior court
may be reviewed by this court upon a writ of certiorari. We
have italicized portions of the statute for the purpose of
emphasizing the legislative intent.

When these several sections are read in the light of the
constitutional mandate fixing the minimum number of
signatures which shall authorize an initiative measure to go
before the people, the view is compelling that the legislature
intended to devolve upon the secretary of state the duty of
expunging fraudulent signatures. Recurring to the provisions
of SS 8, it will be remembered that, in nonregistration
districts, the officer named is only required to certify that he
is acquainted with the legal voters of his precinct, "and
that he believes the signatures" to be the signatures of legal
voters of the precinct. It was apparent to the legislature
that, in most instances, the certifying officer in such
precincts could not know the signatures of one per cent of the
electors residing in his precinct. In view of this fact, it
seems preposterous to assume that the legislature intended to
give finality to such a certificate. It may be said in passing,
that most, if not all, the fraudulent signing occurred in
nonregistration precincts. If the majority view is correct, SSSS 15
and 17 of the law, to which I have adverted, accomplish no
practical purpose. If the legislature had intended what
the majority say it intended, it would have provided that the
secretary of state should, upon the presentation of the
petitions, examine them, first, to see that they had the
requisite number of signatures, second, to see that they were
certified in substantial conformity with the statute, and
third, for duplications, and if, after eliminating the
duplicate signatures, there remained enough names properly
certified to meet the mandate of the constitution, he would have
been required to file the petitions and take the requisite
steps to submit the measures to the people. With the

 658    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per GOSE, J. 81 Wash.

majority view, it was useless for the legislature to require two
counts and to provide for two reviews by the court. It seems
to the writer that the purpose of the legislature is
apparent. In the first instance, before the filing, the secretary of
state was merely required to make a cursory examination to
ascertain if the petition appeared to be in proper form and
appeared to bear the requisite number of signatures of legal
voters. If it did, it was his duty to file the petitions. In
such case, if he refused to file the petitions, the court, upon
proper application, simply determined whether the
petitions were legal in form and apparently contained the
requisite number of signatures. I adopt the view of the majority
as to the meaning of the word "canvass ;" that is, that it
means to "scrutinize, examine, determine" whether the
petition contains the requisite *number* of legal voters regularly
authenticated; not as the majority assume, the number of
"*certified legal* voters," so authenticated. If this
interpretation is not sound, why did the legislature change from the
words "appear to be in proper form and bear the requisite
number of signatures" in SS 8 to the words "canvass and
count" in SS 15? I think the legislature intended, in the light
of the constitution and the statute as a whole, to require the
secretary of state to determine whether the petitions were
signed by the requisite number of legal voters, which carried
with it the power, not only to expunge duplicate signatures,
but fraudulent signatures as well.

This view is in harmony with the decisions of this court
as I read them. I think the majority have misconstrued our
decisions in county seat and other like cases. In Mann v.
Wright, ante p. 858, 142 Pac. 697, a county seat case, we
said:

"It will appear from a reference to these cases that we
have held the submission of a proposition to change a county
seat to be a political or a public question; that, in the
absence of a statute giving the courts jurisdiction of such
matters, the courts will not interfere with the determination of

           STATE EX REL. CASE v. SUPERIOR COURT.      659
 Sept. 1914          Dissenting Opinion Per GOSE, J.

the board of county commissioners where the order of
submission is fair upon its face, except in cases of fraud or
arbitrary action such as was present in the Rickey and
Krieschel cases."

In State ex rel. King v. Trimbell, 12 Wash. 440, 41 Pac.
183, relied upon in the majority opinion, this court said, in
reference to the duty of canvassing boards:

"That the duty of canvassing boards is purely ministerial
and confined to tabulating and ascertaining the result of an
election as shown by the face of the returns properly made
out by the election officers is well established upon both
reason and authority."

These petitions were not fair upon their face. A most
casual inspection will show that in many instances one person
signed two or more names. This is not only apparent from
an inspection, but the fact that names were so signed was
shown by the expert witness in the court below, and not met
by the adverse party.

In State ex rel. Chealander v. Carroll, 57 Wash. 202, 106
Pac. 748, the relator filed in the office of the city comptroller
a written declaration of his candidacy for a public office, in
harmony with the direct primary law. The comptroller
refused to recognize him as a candidate, or to cause his name
to be placed on the ballot. The relator sought to compel
the comptroller by mandamus to place his name on the ballot.
There was no statute or charter provisions authorizing the
comptroller to inquire into the eligibility of a candidate for
public office who had filed his declaration of candidacy. The
primary law limited the right to file a declaration of
candidacy to those persons "who shall be eligible," to the office
sought. After adverting to the fact that the comptroller
was charged with the expenditure of public money, we held
that he had a right to inquire into the eligibility of a
candidate, and that where the act to be performed involved, as
it did there, the expenditure of public money, his duty to
inquire had "almost the form of a mandate."

 660    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per GOSE, J. 81 Wash.

The findings of the secretary of state, an administrative
officer, upon questions of fact are final except for fraud, and
no fraud or arbitrary action is claimed. Indeed, it is
admitted that the secretary acted in the utmost good faith.
Sinnes v. Daggett,
80 Wash. 678, 142 Pac. 5; Doty Lumber
& Shingle Co. v. Lewis County, 60 Wash. 428, 111 Pac.
562, Ann. Cas. 1912 B. 870; Blumauer v. Mann,
72 Wash. 429, 130 Pac. 491.

We have uniformly held that a public officer will not be
compelled to do an illegal act. State ex rel. Osborne,
Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462; State ex rel.
Gorman v. Nichols, 40 Wash. 437, 82 Pac. 741; State ex rel.
Baker River & S. R. Co. v. Nichols, 51 Wash. 619, 99 Pac.
876; State ex rel. Socialist Labor Party v. Nichols,
51 Wash. 79, 97 Pac. 1087.

In State ex rel. Hill v. Olcott, 67 Ore. 214, 185 Pac. 95,
902, a referendum case, the court emphasized the fact that no
attack was made upon the genuineness of any signatures. In
holding that the statute put the duty upon the secretary of
state to determine whether the signatures were genuine and
regularly authenticated, the court said that, in view of the
fact that the genuineness of the signatures was not
questioned, the secretary of state was justified in filing the
petition, and that it was "much influenced in this conclusion by
the fact that it is the duty of the defendant (the secretary
of state) in his official capacity, to determine in the first
instance by an inspection of the petition whether the
signatures are genuine and are regularly authenticated." A like
principle was announced in State ex rel Halliburton v. Roach,
280 Mo. 408, 130 S. W. 689. In In re Initiative Petition No.
23, 35 Okl. 49, 127 Pac. 862, it was held that such
petitions are presumptively valid, and that this presumption can
only be overthrown by proof of fraudulent, arbitrary, or
other unlawful conduct in securing signatures. We are in
hearty accord with this view. The petitions came before the
secretary of state presumptively valid, but the law put the

           STATE EX REL. CASE v. SUPERIOR COURT.      661
 Sept. 1914          Dissenting Opinion Per GOSE, J.

duty upon him to ascertain, in so far as he could, whether
the signatures were genuine, and whether they were certified
in substantial conformity with the statute.

I cannot agree with the majority in its view that SS 17 of
the act limits the trial court and this court to a review of the
errors committed by the secretary of state. It seems to me
that this view entirely overlooks the language of this
section. At the expense of repetition, I again quote its
provisions:

"Any citizen who shall be dissatisfied with the
determination of the secretary of state that the petition contains or
does not contain the requisite number of signatures of legal
voters may . . . apply to the superior court of Thurston
county . . . for a writ of mandate compelling the
certification of the measure and petitions . . . which
application . . . and all proceedings had thereunder,
shall take precedence over other cases, and shall be speedily
heard and determined."

The inquiry is, What shall be speedily heard and
determined? The answer is found in the statute itself; that is,
whether the petition "contains or does not contain the
requisite number of signatures of legal voters." My view is that
the superior court is bound by the decision of the secretary of
state on questions of fact, in the absence of fraud, to the same
extent that it is bound by the findings of the public service
commission, by the board of equalization, or by any other
quasi judicial or administrative officer. If this view is not
correct, then the superior court proceeds de novo, as was held in
the Oklahoma case, and may determine the facts as in any
other case. The superior court is a court of general
jurisdiction, and when it takes cognizance of a case it takes it for
disposition conformably to the statutes of the state and the
general law. If it be a sound interpretation of the statute
that the words "certified legal voters" mean all names certified
to be legal, then it follows that the legislature had a purpose
in omitting the word "certified" in SS 17, and that purpose was
to put the duty upon the superior court to determine whether

 662    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per CHADWICK, J. 81 Wash.

a given petition in fact contained the requisite number of
signatures of "legal voters."

I find no evidence in the statute of an intention to give
finality to the certificate of the certifying officers. If the
statute is reasonably susceptible of that interpretation, then,
in my opinion, it would clearly be unconstitutional, because a
dissatisfied citizen, at some time and some place, has the
constitutional right to have it determined whether the petition
contains the requisite number of names of legal voters as fixed
by the constitution before the initiative measure may be
submitted to the people.

In conclusion, I think, first, that the certificate of the
certifying officer only presumptively gives validity to the
signatures; second, that it was the duty of the secretary to
purge the petitions of all fraudulent signatures; third, that
his findings upon questions of fact, in the absence of fraud
or arbitrary action, are conclusive; fourth, that if this
interpretation be unsound, the statute in terms confers this
power upon the superior court of Thurston county; and fifth,
that, if it did not, the superior court of Thurston county,
being a court of general jurisdiction, when it took
cognizance of the case, had the power to take evidence upon the
question of fraudulent signatures, and expunge from the
petitions all signatures which it found to be fraudulent.

For these reasons, with great respect to the opinion of the
majority, I dissent.

-Dissenting_Opinion-

CHADWICK, J. - When I was called upon to sit
in this case, I had not read the briefs, and I felt that it would
not be right to take time to study the statutes and the
opinion at the time it came to me, inasmuch as the majority had
signed it. Accordingly I said:

"It is imperative that the opinion in this case be filed this
afternoon. I did not sit with the judges who heard the cases
in the first instance. A majority has signed the opinion and
it would do no good for me to hold it until I can give the case
the attention it requires. As soon as it is possible for me to

                STATE EX REL. CASE v. SUPERIOR COURT. 663
 Sept. 1914          Dissenting Opinion Per CHADWICK, J.

do so, I will go into the case as thoroughly as I can and will
then express that opinion which in my judgment governs
the cases."

I have made some examination of the law and of the record,
and it is my judgment that the statute makes the secretary
of state the canvassing officer, with power to inquire and to
determine whether the petitions have been signed by a
requisite number of legal voters; that, in the absence of any
challenge, his certificate is final; but if challenged, his judgment
is subject to review by the superior court; that the superior
court has power to inquire de novo and to make findings.

It seems to me that Judge Gose's analysis of the statute is
unanswerable, but I rather agree with the second ("fourth"
and "fifth") of his alternatives, which, as I understand, is in
accord with Judge Main's opinion.

It would serve no purpose to review the statute or the
decisions relied upon, and I shall not do so except to say that
the decisions of this court, known as the county seat cases,
are, in my judgment, not in point, for this reason: in those
cases, the act sustained was the act of a tribunal established
by law and working under the sanction of an oath, an oath to
maintain the constitution and laws of the state of
Washington. The county commissioners were, in a sense, a
canvassing board, whereas the person who certifies the petitions in
nonregistration districts under the initiative law is not an
officer of the state of Washington and his declaration of
opinion should be no more final than the certificate of the
judges and inspectors at a general election. There is
nothing other than his declaration to give credence to his
certificate. He has taken no oath binding him to observe the law
he is called upon to execute. Any other construction leaves
the provision requiring a canvass of the vote without any life
or meaning.

The effect of the decision of the majority is that fraud
can stalk rampant through the courts, which are established
to maintain justice. I am unwilling to hold any such

 664    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per CHADWICK, J. 81 Wash.

doctrine. The legislature was careful to say that no less than
a certain number of valid signatures should be on the
petition. It was not the intent of the people, when the
constitutional amendment was adopted, that any other rule should
prevail. We are not passing on the merit of the proposed
laws. The fraud in these cases is not denied. The forgeries
are so numerous and so glaring and they speak so loudly
that no man would have the hardihood to deny their
existence. The good faith and findings of the secretary and the
court are not questioned. It is not insisted that the petitions
contain a sufficient number of legal signatures. Proponents
admit all these things, but they say, and the court finds, that
the law is helpless; that, inasmuch as the petitions are
form sufficient, we cannot inquire into their substance. I do
not believe that the law is helpless. The legislature has not
legalized fraud and perjury and forgery, and courts should
not do so.

The rule relied upon by the majority is sound but I
believe it is misapplied. It does not fit into the four corners
of this case. It is a rule arbitrary in its nature, and was
adopted by the courts to do justice and not to work
injustice; to preserve harmony between the several departments
of government. It is a rule which prevents a court from
inquiring into the motives and discretion of officers when
laterally attacked, when charged with the execution of the
powers of other coordinate branches of the government. It
is never applied where the law provides for a direct attack,
as I believe it has in this case.

The distinction between the rule adopted by the majority
and the applicable rule was observed by this court in the
case of Rickey v. Williams,
8 Wash. 479, 56 Pac. 480. The
court there said:

"The granting of the writ in this case did not involve an
inquiry into any matter which rested in the discretion of the
board, nor into any disputed question of fact. It was not
an interference with the legislative branch of the government

                STATE EX REL. CASE v. SUPERIOR COURT. 665
 Sept. 1914          Dissenting Opinion Per CHADWICK, J.

in any sense, but rather was in aid of legislative action.
The legislature only authorized the board to submit the
question in case the petition specified was filed, and then the
board must submit it. If the board should arbitrarily refuse to
act where, under the undisputed facts the law required them to
proceed, the courts would unquestionably compel them to
act. No other branch of the government could compel
action, and if the courts have not jurisdiction in such a case
the legislature is powerless and the law simply a dead
letter."

The converse of this must follow. That is, where the law
says that the question shall be submitted only upon a
petition containing a sufficient number of legal signatures, and
the fact is admitted that there is not a sufficient number of
legal signatures, the court should restrain the proceeding.
If it is not so, then indeed is the legislature powerless to
preserve the sanctity of such proceedings and the law is a dead
letter.

If a man forges a signature to a check or to a note, it has
no legal life for it is conceived in fraud. If this court should
hold that such a note or check were good if it had the
certificate of a confederate that he believed it to be the
signature of the party whose name was attached to it, we would
meet the just criticism of all men. I can see no difference
between such a case and the one at bar except that the case
at bar may have less to excuse the fraud. Those who
circulate and certify these petitions are voluntary agents
acting under a deep moral obligation to the state. They are
exercising in the highest degree a public function. If they
return forged petitions, no pecuniary gain results to them,
but the state suffers a loss in the lowering of its moral
standards.

With the fact admitted that the petitions do not contain a
sufficient number of legal signatures, it seems to me that the
court has made a mistake in searching for precedent and
authority to sustain them. The initiation of laws by
petition is a new thing. It stands unrelated to any other

 666    STATE EX REL. CASE v. SUPERIOR COURT.
                Dissenting Opinion Per CHADWICK, J. 81 Wash.

subject of the law's concern, and instead of looking for
authority that has been applied to cases where courts have said
they would not review the discretion of public officers, we
have a rare opportunity to say that, with the adoption of new
ideas, we will declare a rule rounded in the doctrine of
common honesty regardless of precedent. If there be no
authority or precedent for holding tight to the doctrine of
honesty in all public affairs, then I say, as I have said twice
before (Mazetti v. Armour & Co.,
75 Wash. 622, 135 Pac.
683, 48 L. R. A. (N. S.) 213; Weber v. Doust, post p. 668,
143 Pac. 148), it is high time that we make a precedent.

There is only one test and that is, an honest petition
containing a sufficient number of legally qualified voters. Can
any one doubt what the attitude of proponents would be if
they were opposing, rather than promoting, these measures?
If the other side were here with a petition reeking and
dripping with fraud, would they not insist that the parties who
certified the fraud could not purify it so as to pass the
inspection of canvassing officers and of the courts ? Will
proponents deny that they would be here asserting that the
measure proposed be sustained by reference to the doctrine
of common honesty and that the name of every petitioner
should be the truthful expression of every one who signed
It may be admitted that there are thousands of names of
good honest men on the petitions, bug that is not enough.
The people themselves have fixed a certain limit of ten per
cent of the legal voters; and before the petition can be
voted on, it should have the requisite number of legal
signatures. To hold the contrary, is to nullify the limit fixed
by the people. If this procedure is upheld, we would have
to allow a petition actually signed by one or one hundred
men, if there were a sufficient number of fraudulent names
to make up the number required and these certified in form.

Something was said in oral argument about progressive
measures. To sustain fraud and forgery is not a proper
test of progress. Progress stands for honesty. To take a

                STATE EX REL. CASE v. SUPERIOR COURT. 667
 Sept. 1914          Dissenting Opinion Per CHADWICK, J.

petition acknowledged to be fraudulent by counsel and by
every member of this court and purify it by judicial breath
is retrogression in its worst form. The people are
demanding that the courts shall look to the justice of the case and
abstain from technical constructions. It is my opinion that
no case has ever been before this or any other court where
justice has been so clouded by a technicality.

I have no fault to find with my brothers who have signed
the majority opinion. They are as sincere in their opinion
as I am in mine. I believe they have misconceived and
misapplied the law.

I have written my opinion of the proceedings attending the
preparation and filing of the petitions in these cases so that
when the legislature is convened it will know that it has been
judicially held that certified fraud is legal fraud; that its
former act has no gates to shut out frauds and forgeries
and that the citadel of truth and honesty that it undertook
to build around the constitutional amendment permitting and
encouraging direct legislation is a house of cards.