Hinkley v. Wells

Petitioner Hinkley, as a registered elector of Contra Costa County, circulated in that county a peti

Thereupon a new affidavit was made by the circulator of the petition stating his qualifications in full as required and this was tendered to the respondent with a demand that he file the same and attach it to the proper section of the petition or that he permit the withdrawal of the petition from his files in order that the petitioner herein might attach the new affidavit thereto and refile the same. The respondent refused the demand upon the ground that to permit the alteration or removal of the petition would be to violate section 113 - of the Penal Code, which relates to the altering, mutilating, defacing, or removing of public records. In his answer to the petition for a writ of mandate herein respondent admitted that the original initiative petition and affidavit were in his possession and alleged that he had examined the signatures attached thereto as well as the qualifications of ■ the circulator and had certified them to the

[1] Technically the original affidavit complied with the requirements of the constitution—it stated the qualifications of the affiant but did so imperfectly. That is to say, the constitutional requirements are that the circulator of each petition must file an affidavit “stating his own qualifications” among other things. In stating that he was a “resident” of Contra Costa County he stated the truth, because to be a qualified elector he must have been a resident. But a resident of the county is not necessarily a qualified elector thereof. The purpose of the constitutional requirement is to aid the county clerk in his examination of the petition. If, notwithstanding some imperfection in the affidavit, the county clerk finds, as here, that the circulator’s qualifications meet the requirements and upon examination duly certifies the petition to the Secretary of State, we do not understand that that official has any other duty than to receive the petition so certified and submit the proposition to the electors at the ensuing general election if the certificates show the required number of qualified signatures. The duty of the Secretary of State is found in the second paragraph of section 1 of article IV of the constitution, which reads: “Upon the presentation to the secretary of state of a petition certified as herein provided to have been signed by qualified electors, equal in number to eight per cent of all the votes cast . . . the secretary of state shall submit the said proposed law or amendment ... to the electors at the next succeeding general election.” There is nothing in the quoted language which gives to the Secretary of State any power to reject a petition because of any defect in the affidavit of the circulator. In the arguments it is said that the Secretary of State is satisfied to receive amended affidavits and we are ur,ged to issue this writ because the error has occurred in the petitions circulated throughout the state, and to circulate

[2] In arriving at the legal duty of the respondent it should be observed that the original affidavit is not a nullity but complies with the constitutional requirements as stating affiant’s qualifications. Neither the county clerk nor the Secretary of State may refuse to file the petition because the affidavit fails to state all the qualifications of the circulator if he is in fact qualified and makes satisfactory proof of those qualifications.

The affidavit is subject to amendment like an affidavit on a bill of costs, on motion for change of place of trial, on attachment, justification of sureties, and similar proceedings. When so amended the affidavit dates back to the time of the filing of the original. (Burnham v. Hays, 3 Cal. 115 [ 58 Am. Dec. 389 ]; Palmer & Rey v. Barclay, 92 Cal. 199 , 201 [ 28 Pac. 226 ]; Nichols v. Davis, 168 Cal. 570 [ 143 Pac. 758 ]; Bone v. Trafton, 31 Cal. App. 30 , 32 [ 159 Pac. 819 ]; Gardner v. Steadman, 31 Cal. App. 447 , 450 [ 160 Pac. 834 ]; Jaques v. Owens, 18 Cal. App. 114 , 116 [ 122 Pac. 430 ]; Pittman v. Carstenbrook, 11 Cal. App. 224 , 229 [ 104 Pac. 699 ]; Lundy v. Lettunich, 50 Cal. App. 451 [ 195 Pac. 451 ].)

[3] There is no essential difference between the requirement that the affidavit be filed with or at the time, or at the same time as the moving papers, as in the cases cited, and the requirement that it shall be attached to the papers, as in this case. The purpose of attaching the affidavit to the petition is to facilitate identification of the section of the petition. So long as the amended affidavit sufficiently identifies the section of the petition to which it relates it is a paper which the affiant has a right to file with the county clerk as a part of the initiative proceedings. The method by which the affidavit is to be “attached” is not prescribed— whether by pin, or clip, glue, or some other such method—■ but we are satisfied that though the county clerk should receive and file the amended affidavit, and though he would not be amenable to any penal statute if he attached it to

[4] Though we are satisfied that the petitioner is entitled to have respondent file the affidavit with the section of the initiative petition to which it relates, we do not understand that respondent has refused after demand to do so, but merely that he has refused to attach the affidavit to the petition or to permit the withdrawal and refiling of the original with the amended affidavit attached. Assuming that the showing is sufficient to authorize the issuance of the writ to require respondent to file the new affidavit, the issuance of the writ is largely discretionary and should be denied when not necessary to afford petitioner the relief to which he is entitled. (Fawkes v. City of Burbank, 188 Cal. 399 [ 205 Pac. 675 ].)

Writ denied.

Langdon, P. J., and Sturtevant, J., concurred.