Anderson v. Byrne

• Decision Date: 28 May 1932
• Docket Number: 6052
• Citation: 242 N.W. 687,62 N.D. 218
• Court: North Dakota Supreme Court

242 N.W. 687

62 N.D. 218

ED. C. ANDERSON, Petitioner, v. ROBERT BYRNE, as Secretary of the State of North Dakota, E. E. Greene, L. H. Byer, C. W. Fine, Lee B. Hampton and W. J. Maddock, Respondents

No. 6052

Supreme Court of North Dakota

May 28, 1932

Original application for review of decision of respondent secretary of state and for issuance of an appropriate writ.

Dismissed.

Lawrence Murphy, Fuller & Powers, for petitioner.

Taxpayer may apply for writ of prohibition. State ex rel. Linde v Taylor, 33 N.D. 76, 156 N.W. 561; State v. Archibold, 5 N.D. 359, 66 N.W. 234.

Petition for writ of prohibition must show that the case affects the sovereignty of the state or that it is of sufficient importance to justify the exercise of the court's discretion. State ex rel. Linde v. Packard, 32 N.D. 301, 155 N.W. 666, 33 A.L.R. 1384, 70 A.L.R. 738; Gulick v. Linn (Okla.) 216 P. 460; Tolvert v. Long, 134 Ga. 292, 137 Am. St. Rep. 222, 67 S.E. 826; Mayor v. Hughes, 110 Ga. 795, 36 S.E. 247; Roswell v. Ezzard, 128 Ga. 43, 57 S.E. 114; Maysville v. Smith, 132 Ga. 316, 64 S.E. 131; DeKalb County v. Atlanta, 132 Ga. 727, 65 S.E. 72.

Without the collection of revenue, neither the state nor its governmental subdivisions can function. Hughes County v. Henry, 202 N.W. 286.

James Morris, Attorney General, and Charles Simon, Assistant Attorney General, for respondent Byrne, William Lemke, for respondent Greene.

Constitutionality of a proposed measure cannot be raised prior to its enactment into law. Dyer v. Hall, 51 N.D. 391, 199 N.W. 754.

The provisions of the constitution providing for the initiative and referendum must be liberally construed in favor of that right. Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741; State ex rel. Booth v. Hinkle (Wash.) 269 P. 818.

"An injunction does not lie to restrain the holding of a public election authorized by law and properly called." 32 C.J. 255; Payne v. Emerson, 290 Ill. 490, 125 N.E. 329.

Many cases assert that courts cannot control by injunction, or any other writ, the exercise of a purely legislative or executive power. State v. Thorson (S.D.) 68 N.W. 202.

Chancery has no jurisdiction to protect purely political rights such as those in respect to public elections, because such rights are purely political and enforceable only at law. Fletcher v. Tuttle, 151 Ill. 41, 25 L.R.A. 143, 37 N.E. 683; Shoemaker v. Des Moines, 3 L.R.A.(N.S.) 382; (City Council v. Millwee, 31 Okla. 620, 122 P. 173, 40 L.R.A.(N.S.) 576.

The attempt to check the free expression of opinion or to forbid the peaceable assemblage of the people, to obstruct the freedom of elections, if successful, would result in the overthrow of all liberty regulated by law. Thompson v. Mahoney, 136 Ill.App. 403; State v. Zimmerman (Wis.) 210 N.W. 381.

A supreme court can announce no public policy of its own, but merely what it believes to be the policy of the people of the commonwealth which created it. N.P.R. Co. v. Richland County, 28 N.D. 172, 148 N.W. 545.

The wisdom of a legislative policy is for the legislature, and not for the court. Van Voert v. Modern Woodmen, 29 N.D. 441, 151 N.W. 224; School Dist. v. Olsness, 53 N.D. 683, 208 N.W. 968, 45 A.L.R. 1337.

Generally courts will not interfere with holding election, when it is provided for by a valid law, and forms prescribed have been complied with. Hartness v. Sacramento County, 195 Cal. 676, 235 P. 445.

A state has the right to enact moratorium laws and thereby suspend or defer legal remedies. Granger v. Luther (S.D.) 176 N.W. 1019; Johnson v. Higgins, 3 Met. (Ky.) 566; Edmonson v. Ferguson, 11 Mo. 344; Coxe v. Martin, 44 Pa. 322; McCormick v. Rusch, 15 Iowa 127, 8 Am. Dec. 401.

BIRDZELL, J. Christianson, Ch. J., and Nuessle, Burr and Burke, JJ., concur.

OPINION

BIRDZELL

The petitioner has filed in this court a petition for a review of the action of the secretary of state in holding sufficient and filing an initiative petition for a measure providing for a five-year partial moratorium. Combined with the petition for review, the petitioner alleges that the proposed measure is unconstitutional and void and asks that the secretary of state be permanently enjoined from its publication and from placing the same upon the official ballot for election.

The petitioner and plaintiff, petitioning for review, alleges that he is a resident and taxpayer in the county of Cass, state of North Dakota, and interested in the event of the proceeding; that the respondent Byrne is secretary of state of the state of North Dakota; that the other respondents are members of a committee for petitioners and that the document filed with the secretary of state purports to be an initiative petition for the measure in question. It is alleged that the secretary of state had accepted and filed the petition and found the same to be legal and sufficient to justify the placing of the measure upon the ballot at the election to be held on June 29, 1932. The petitioner alleges that the initiative petition is void and insufficient in that it "fails to contain the full text of the measure, which in said petition is set forth, and it does not purport to contain or include any text of said measure whatever as required by article 2, § 25, of the State Constitution." Also, "That the said petition is insufficient and void for the reason that the purported measure or law therein contained is unconstitutional and void in the respects and particulars set forth and hereinafter alleged in the attached petition for a writ of prohibition, the allegations of which are referred to and adopted as a part of this petition for review."

In his petition or application for a writ of prohibition or other writ restraining further proceedings looking toward the submission of the purported measure to election, the petitioner alleges that the attorney general declines to maintain the proceeding in the name of the state and that the petition is made in behalf of the state by the petitioner and in behalf of the citizens and taxpayers of the state similarly situated with him; that the proposed measure is "wholly unconstitutional or otherwise void in this:

"(1) It extends the benefits of a moratorium against the enforced collection of taxes and other indebtedness contrary to the interests of the state as tax payee and creditor (in its capacity as a sovereign state and also as a private industry). That the whole of said act is made to depend upon a classification of persons and property which is so indefinite that it is unenforceable and void.

"(2) That the said act in so far as the same suspends the law for the collection of taxes, represents an unconstitutional and illegal surrender of the police power of the state to maintain itself by the collection of tax revenues.

"(3) That, in so far as said act suspends the enforced collection of existing indebtedness other than taxes, it impairs the obligation of contracts and disturbs the vested rights of certain financial instrumentalities of the public, chartered by and operated under the supervision of the state government, to wit: building and loan associations hereinafter mentioned; and said act deprives the said associations and their members of property without due process of law.

"(4) That, for reasons above stated, the said measure is void in its entirety; that, for other reasons hereinafter set forth, so much of the object and purpose of said act is illegal that the whole thereof should be adjudged void."

It contains allegations showing the consolidated tax levy for the year 1931 and the percentage thereof, 17.79 per cent, uncollected. It alleges that the greater part or practically all such unpaid taxes were levied upon property of persons who would be entitled to the benefits of the proposed moratorium, and it shows the prospective inability of the state and its governmental subdivisions to function normally if their right to collect taxes previously levied be substantially impaired.

The petitioner alleges that he is the owner and holder of shares of invested capital in certain building and loan associations organized under the laws of this state and that the moneys of the petitioner and others similarly situated have been placed in the hands of such associations for investment and have been invested in real estate mortgages on numerous dwelling houses and that the interest income derived from this source constitutes the income of investments of the petitioner and other members; that there are more than one hundred thousand members and holders of capital stock in the building and loan associations organized under the laws of this state and that the combined investments of capital and deposits of members in real estate mortgage securities approximate ten million dollars, which investments yield to the members approximately six per cent per year. It is then alleged:

"That according to the purported effect of the said measure and the benefits thereof conferred upon each of the said mortgage borrowers, the mortgagor may decline to pay any part of the principal or interest on his mortgage loan until a foreclosure sale is made and, thereafter, but one per cent per year of the amount at which the mortgaged property may be sold or bid in at such sale. That said mortgagor, by the terms of said act, is not obliged to repair or maintain insurance upon the mortgaged premises nor pay the taxes of the years 1931 and 1932 thereon, to enjoy the benefits of such moratorium; and that said mortgagor may take and retain the value of possession or rents of the mortgaged premises for a period of five years at a cost to him of but one per cent per year of the amount of the mortgage indebtedness.

"That the exercise of their rights, under said law, by the said mortgage...