Anderson v. Byrne

• Decision Date: 28 May 1932
• Docket Number: No. 6052.,6052.
• Citation: 62 N.D. 218,242 N.W. 687
• Parties: ANDERSON v. BYRNE, Secretary of State, et al.
• Court: North Dakota Supreme Court

62 N.D. 218

242 N.W. 687

ANDERSON

v.BYRNE, Secretary of State, et al.

No. 6052.

Supreme Court of North Dakota.

May 28, 1932.

Syllabus by the Court.

1. Article 2, § 25, of the Constitution, requiring every initiative petition to contain the full text of the measure initiated, is satisfied as to an initiative proposal for the adoption of a statute where the text of the measure incorporated in the petition is a complete expression of the legislative purpose.

2. Where pre-existing legislation is affected by a proposed measure incorporated in an initiative petition, the petition may be sufficient though no reference in said measure be made to the pre-existing laws so affected.

3. The petition in the instant case is held to be a petition for the initiation of a statutory measure and not an amendment to the Constitution, and, as such, it is held to be sufficient.

4. A litigant can be heard to question in this court the constitutionality of a statute only when, and in so far as, it is applied to his disadvantage.

5. It is no part of the judicial function to interfere with constitutional processes of legislation, and the Supreme Court cannot entertain a suit, the purpose of which is to test the constitutionality of a proposed statute on the ground that if enacted it will conflict with the constitutional rights of the litigant.

Original application by Ed. C. Anderson for review of a decision of Robert Byrne, Secretary of State, and for writ of prohibition or other writ, opposed by the Secretary of State and others.

Petition dismissed.

Lawrence, Murphy, Fuller & Powers, of Fargo, for petitioner.

James Morris, Atty. Gen., and Charles Simon, Asst. Atty. Gen., for respondent Byrne.

William Lemke, of Fargo, for respondents Greene and others.

BIRDZELL, J.

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, section 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 $10,000,000, which investments yield to the members approximately 6 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 year 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 borrowers, will automatically reduce the income of petitioner, and others similarly situated, from six per cent to one per cent per year; will necessitate the cost and expense of numerous foreclosures to enforce the payment of the said one per cent of the mortgage indebtedness, and depreciate the value of the physical security of said creditors during the period of said moratorium, and destroy the value of existing memberships and capital shares in the said associations.”

It is further alleged that the obvious and unavoidable effect of the publication of the proposed law will be to create a far-reaching doubt and apprehension as to the value and enforceability of real estate loans and investments of savings and building and loan associations and will have an adverse effect upon the maintenance of existing savings deposits.

The petitioner alleges that he is also the owner of or interested in certificates of tax sales on lands of persons entitled to the benefits of said moratorium.

There are further specific allegations of unconstitutionality as follows:

“That each and every part of said act is contradictory of numerous existing provisions of the constitution and statutes of this state; that said act does not purport to amend said provisions but is void as an illegal attempt to suspend the operation of the same.

That by reason of all the facts aforesaid, the said proposed measure is void and unconstitutional in that it violates the Fourteenth Amendment to the Constitution of the United States and Sections 16, 20, 22, 61 and Section 69, Subdivision 25 and Subdivision 27 of the State Constitution.”

To the petitions separate answers and returns were made by the respondent Byrne, as secretary of state, and by the respondents comprising the committee for the initiative petitioners. In the answer and return of the secretary of state, it is alleged that the initiative petition in question was filed in his office on the 30th day of March, 1932, and that as secretary of state he accepted and filed the said petition after an examination had been made and the same had been found sufficient in form, sufficient as to the number of signatures, the dating of the same, the notations of post office address and...