The opinion
*1096 BARNES, Justice
(dissenting):
I cannot concur in the Majority Opinion for the reasons hereinafter set forth.
First, I disagree with its conclusion of law that petition circulators do not have to be registered voters. When the Oklahoma Legislature enacted Title 34, O.S.1971 and 1969 Supp., § 3.1, making it unlawful for any person other than a “qualified elector” to circulate any initiative or referendum petition, it must have contemplated that the circulator be a registered voter.
I recognize that in the 1926 case of In re State Question No. 138, 114 Okl. 285 , 244 P. 801 (cited in the Majority), the Court, in the body of the opinion, noted that no authority had been cited, and it found none, to support protestants’ contention that petitions containing 607 signatures should be eliminated because they were obtained by minors. There was a paragraph of the syllabus written under the sixth headnote prepared by the publisher of that opinion that referred to our Constitution and statutes as not defining the qualifications of a petition circulator. Though that syllabus seems to lack affirmative support in the opinion, I will concede arguendo that previous to the enactment of Section 3.1, supra, this State had no statute which referred to the qualifications of petition circulators in any way.
The Majority Opinion says that the Legislature enacted this statute “with knowledge of problems existing theretofore”, and opines that since that Body therein attempted no change in circulators’ qualifications from “qualified elector” to “registered voter”, no such requirement or qualification was intended; and the opinion thereupon so holds.
If Section 3 of Title 34, requiring (also obliquely) that signers of such petitions be legal voters by specifying that the outer page of each petition pamphlet have a printed warning that it is a felony for anyone to sign such a petition “when he is not a legal voter”, had been enacted by the same Session of the Legislature that enacted the 1969 Statute (Section 3.1, supra), then there might be more reason for thinking that the use of the two terms “legal voter” and “qualified elector” evidenced legislative intent to recognize a distinction in meaning between these two terms. But this was not the case. Section 3 (with a slight immaterial amendment in 1961) was enacted in 1910, or 59 years before Section 3.1, supra. During this 59-year period, many different sessions of the Legislature convened and adjourned with changing personnel. Also during this period, in 1936 this Court promulgated its opinion in In re Initiative Petition No. 142, State Question No. 205, 176 Okl. 155 , 55 P.2d 455 , in which this Court held that a petition signer had to be a registered voter, citing as its principal authority therefor (p. 460) the case of Ahrens v. Kerby, 44 Ariz. 337 , 37 P.2d 375 . In the Arizona case, that Court, in reaching its decision, concluded that the term “qualified elector”, in the way it had been used in that State’s Constitution and statutes, was intended to mean an elector who was a registered voter. And I submit that the question of whether a person has the qualifications of an “elector” is different from the question of whether he is (already or in praesenti) a “qualified elector”. In view of the cited Oklahoma opinion following the Arizona decision, it would seem reasonable that after that decision had stood for 33 years, our Oklahoma Legislature, in enacting Section 3.1, supra, in 1969, would have seen no necessity for using any other term than “qualified elector” in making the circulation of an initiative petition, by anyone else, a felony. I daresay that many members of the various sessions of the Legislature, both lawyers and laymen, since 55 P.2d 455 , supra, was published, have never considered the two terms “qualified elector” and “registered voter” as anything but synonymous. That the lawyers and/or laymen who drafted the “INSTRUCTIONS” sheet attached to the front of the petition pamphlets in this case so interpreted that term as it is used in Section 3, supra, is rendered doubtless by the replica of said sheet which follows:
*1097
*1098 When it is remembered that petition cir-culators play a very important role in setting in motion the machinery of the law by which measures are brought before the public, I think it would be passing strange and just as incongruous for them not to be registered voters as the Arizona Court thought it was for petition signers not to be registered voters when, in Ahrens, supra, it said (37 P.2d p. 379):
“ * * * it is reasonable to presume that it was foreign to the purpose of those who gave form to the constitution to empower unregistered electors to set in motion the machinery of the law by which measures upon which they themselves could not vote might be brought before those who could. They were evidently of the view that since, in the process of securing the judgment of the voters on a proposed or referred measure, it is just as necessary that a petition to place it on the ballot be filed as it is that a vote ■ on it thereafter be had, no one should be permitted to aid in accomplishing the former who had not placed himself in a position to take part in the latter, the final solution of the problem.” (Emphasis added)
There, that Court also proceeded to demonstrate quite clearly that the only practical way to substantiate voters’ qualifications is by checking registration records. And the same truth applies to the qualifications of circulators as qualified electors. The only alternative to this is lengthening contests like the present one immeasurably by subpoenaing the circulators, putting them under oath, and taking their sworn statements.
In accord with the foregoing, it is my opinion that the term “qualified elector” as used in Section 3.1, supra, was intended to have the same meaning as “registered voter” and that the Contestants’ challenge to 2,355 signatures on petition pamphlets circulated by persons not registered voters should have been sustained.
Nor do I think that a signer who also signs others’ names, in the face of a warning that he is thereby committing a felony, should have his own name counted. To do so makes the initiative process a farce. Title 34, O.S.1971 and 1961, § 23, provides, in part, as follows:
“* * * Any person signing any name other than his own to any petition, or knowingly signing his name more than once for the same measure at one election, or who is not at the time of signing the same a legal voter of this State * * * or who signs or files any certificate or petition knowing the same or any part thereof to be falsely made, * * * or who shall violate any provision of this statute, or who shall aid or abet any other person in doing any of said acts; and any person violating any provision of this Chapter, shall upon conviction thereof be punished by a fine of not exceeding five hundred dollars or by imprisonment in the penitentiary not exceeding two years, or by both such fine and imprisonment in the discretion of the court before which such conviction shall be had.”
As directed by Section 3, supra, each of the petition pamphlets in this case had printed on its second page, immediately below the State Question number and the petition’s number, the following, in bold blackfaced type:
“‘WARNING’
“It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than once for the measure, or to sign such petition when he is not a legal voter.”
Should this Court adjudge this petition by lesser legal requirements than it recognized and proposed to be governed by? I do not think so. If the signatures of apparently intentional felons were eliminated from the petition in this case, there would be 344 less valid signatures on it than are upheld by the Majority Opinion.
Nor would I indulge “the presumption of validity” which the Majority Opinion ap *1099 plies to 491 of the 951 signatures affixed by persons who subscribed more than two names. I think the Contestants’ expert testimony was sufficient to overcome such presumption and to place upon the Proponent the burden of establishing the authenticity of such signatures. As this burden was not discharged, I would not count any of the 951 signatures in this category. This would add 491 signatures to those found invalid by the Majority.
When this number is added to the 344 forgeries I have mentioned and to the 2,355 signatures obtained by unqualified circulators, it will be seen that, instead of having 107,478 valid signatures (other than those not dealt with in the Majority Opinion), the subject petition has 3,190 less, or only 104,288 valid signatures. This falls short of the 104,818 valid signatures required, and, in my opinion, renders the petition wholly ineffective.
In accord with the foregoing, I respectfully dissent to the Majority Opinion.