The opinion
BURNETT, J.,
Dissenting. — In this original proceeding in this court to compel the defendant by
mandamus
to file and place on the ballot at the coming election an initiative measure described in the alternative writ, so that the same may be voted upon at the next general election, the defendant filed a general demurrer to the alternative writ.
In keeping with the meticulous punctilio characterizing the whole referendum system and its appurtenant legislation, the writ goes into great detail in alleging the preliminary steps for procuring signatures to initiative bills, even to stating the quality of the paper and the size thereof upon which the petitions were printed. When it comes to the essential part of the question which was argued before us at the hearing of the demurrer, we find the following language:
“Whereas, it is further alleged that the petition for said initiative measure was duly signed in due and legal form by 18,100 citizens and legal voters of the State of Oregon, giving in addition to their signatures their residences, post offices and precinct numbers, and of which number 13,773 were registered voters of the State of Oregon, more than the percentage required for that purpose; that under the constitution and laws of the State of Oregon not more than 12,760 genuine signatures of legal voters of the State of Oregon are required to initiate a bill”; etc.
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As a matter of pleading, this allegation is not sufficient in that it contains only a conclusion of law. The writ ought to state the facts which the plaintiff claims authorize the conclusion so that the court could for itself determine whether that conclusion was a proper one as a matter of law. This alone is sufficient to sustain the demurrer to the writ. The question argued at the hearing does not arise upon a fair consideration of the averments of the writ. Like any other case, the issue of law on the demurrer ought to be determined on the sufficiency of the averments of the writ.
In some of the briefs, but not in the writ, we find it stated that at the last general election, as shown by the abstract of the canvass of the votes for justice of the Supreme Court:
Harry H. Belt received 159,490 votes.
O. P. Coshow received 107,734 votes.
Percy R. Kelly received 96,513 votes.
Scattering received 4 votes.
In the present form of the state Constitution, in Section 1 of Article IY thereof, treating of the initiative and referendum, it is said:
“ * * The first power reserved by the people is the initiative, and not more than 8 per cent of the legal voters shall be required to propose any measure by such petition, and every such petition shall include the full text of the measure so proposed. * * The whole number of votes cast for justice of the supreme court at the regular election last preceding the filing of any petition for the initiative or for the referendum shall be the basis on which the number of legal voters necessary to sign such petition shall be counted. * * ”
One of the most familiar rules of common-school mathematics is that in calculation of percentage there are two essential factors; first, the rate and, second,
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the base, the product of which multiplied on each other is the percentage desired. By their Constitution the people have fixed 8 per cent as the rate. By the same authority they have said that the “whole number of votes cast for justice of the Supreme Court at the regular election last preceding the filing of any petition for the initiative” shall be the base. In that any other rate or base might have served the purpose as well, each of these factors is arbitrary, but necessarily so, if we are to employ the initiative system at all. As a matter of practical knowledge, there are no public records mathematically accurate concerning the actual number of voters in the state at any given date. It is an affair of general information that at every election there are legal voters who do not vote. It is also true that between elections many resident citizens reach the voting age, or die, so that the number of electors in the state, like the tide, is in a continual state of flux. It is fair to assume that no two enumerations of the legal voters of the state taken within a month of each other would agree exactly. Consequently, it became necessary to prescribe an arbitrary rule for the base upon which the percentage must be calculated. All standards are arbitrary.
It is well known that at every general election, from the creation of the separate Supreme Court to the present time, it is possible to have at least three places to fill as justices of the Supreme Court. The very first election after the establishment of the separate Supreme Court required the election of three separate justices of the court. Properly we may attribute to the authors of the amendment the idea that less of political enthusiasm or fanaticism would attend
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an election of the justices of the Supreme Court than for any other office. To the lasting credit of Oregon, its Supreme Court has been singularly free of political bias. Hence arose the theory that the vote on that question would most fairly express the actual number of votes when the people are calm and collected. A natural consequence was the employment of the number, of votes cast for that office as the basis of the percentage. The language of the Constitution in that respect refers to votes and not to voters.
At every general election, each elector is entitled to cast more than one vote. Possibly he votes for United States senator, for Governor, for presidential electors, or justices of the Supreme Court, and for other officers. For Governor he casts but one vote but for justices of the Supreme Court there might be a possible seven for him to cast.
With all these matters of state history in mind, the people enacted the Constitution, declaring not that the number of voters who voted for justice of the Supreme Court but the number of votes cast for that office should be considered as the basis on which the number of legal voters should be counted. Moreover, they required not that the votes cast for any one candidate but the whole number of votes cast for the office should be that basis.
If we can, as a verity, say that the 159,490 votes cast for B for justice of the Supreme Court at the last general election were the only votes for that office, then the
mandamus
ought to be made peremptory. Again, if the 107,734 votes cast for C or the 96,5Í3 votes cast for K were not votes cast for justice of the Supreme Court, at least one member of this court has no right to the office he holds. It is an absurdity
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to say that the votes cast for C and for K were not votes cast for justice of the Supreme Court. They are quite as material in the calculation as any of the votes cast for B.
Take a possible case where there would be but one justice to elect and but two candidates, A and B. In a total vote of 200,000, A receives five more votes than B. Excluding the vote of B from the calculation and taking 8 per cent of the vote of A would result in government at the behest of an 8 per cent minority of a bare majority. The .evil would be accentuated if there were but one to elect; there were a half dozen candidates and the percentage was calculated on the highest vote of any single candidate, rejecting all the others. This would put the initiative in the hands of an 8 per cent minority of a pronounced minority. Government by election may become as annoying and undesirable as “government by injunction” was ever painted. A due regard for public order requires that it be kept within constitutional bounds.
It is quite manifest that “the constitution as it is” requires all the votes cast for B, for C and for K and “scattering” to make up “the whole number of votes cast for justice of the supreme court.” The votes for C, K and “scattering” were not cast for Governor, senator or justice of the peace. Just as those cast for B were for justice of the Supreme Court, so are the others. In short, confronted with the probability that there would often be more than two places to fill in the membership of the Supreme Court requiring of each elector two or more votes for that office and that it was impractical, if not impossible, to ascertain with exactness the number of
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legal voters in the state at any time, the people have adopted a convenient, though arbitrary, rule for fixing the basis upon which the percentage at the rate of 8 per cent shall be calculated. It is always practicable to refer to the official canvass of votes on file in the office of the Secretary of State and ascertain how many votes were cast for justice of the Supreme Court at the last preceding election.
It is true that in
State ex rel.
v.
Kozer,
105 Or. 486 ( 210 Pac. 179 ), and in
Kellaher
v.
Kozer,
112 Or. 149 ( 228 Pac. 1086 ), there are
dicta
assuming without any discussion whatever of the Constitution that a certain number of votes was necessary for a valid initiative petition. These
dicta
certainly cannot fairly be construed in a manner subversive of the plain language of the Constitution. Neither are we to receive or be bound by, as conclusive, the uncontested practice in isolated cases of the Secretary of State in filing initiative petitions. The mere passive acquiescence in a practice should not be permitted to undermine and eventually overthrow the plain mandates of the organic law. The alternative writ is insufficient because it contains in vital particulars only conclusions of law and not basic facts from which the court can draw the conclusion desired. Even granting that the argument on the demurrer can fairly be deemed apropos to the allegations of the writ, yet we ought to attend to the language of the Constitution and not construe it out of existence. For these reasons I "dissent.