Christianson v. City of Bismarck, 910151

Citation476 N.W.2d 688
Decision Date07 October 1991
Docket NumberNo. 910151,910151
PartiesJames CHRISTIANSON, Plaintiff and Appellant, v. CITY OF BISMARCK, North Dakota, Defendant and Appellee. Civ.
CourtUnited States State Supreme Court of North Dakota

Irvin B. Nodland of Nodland, Tharaldson & Dickson, Bismarck, for plaintiff and appellant.

Charles C. Whitman, City Atty., Bismarck, for defendant and appellee.

LEVINE, Justice.

James Christianson appeals from a district court order denying his application for a writ of mandamus that would have required the Bismarck City Commission to act upon a petition for a proposed ordinance as required under section 40-12-06, NDCC. 1 We reverse and remand.

Christianson is one of several residents of the city of Bismarck who circulated a petition to initiate an ordinance relating to the extension of Washington Street that would require no separation of the elevation of road grades at the intersection of Washington Street and Main Avenue. 2 After the City Auditor certified that the petition contained the requisite number of valid signatures, the petition was presented to the Bismarck City Commission.

The City Commission, on advice of counsel, unanimously voted to deny the petition because the design of a street was an administrative matter not subject to initiative. Christianson then requested a writ of mandamus from the district court ordering the City Commission "to comply with the provisions of Section 40-12-06, N.D.C.C." The district court declined to issue the writ, reasoning that only legislative matters, not administrative ones, were eligible for the initiative process and that the selection of the road grade was administrative. 3 The district court then dismissed the action. Christianson appealed.

A writ of mandamus may be issued by the Supreme Court or district courts of North Dakota "to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." NDCC Sec. 32-34-01. An applicant for a writ of mandamus must demonstrate both a clear legal entitlement to the performance of the particular act sought to be compelled and no other plain, speedy and adequate remedy in the ordinary course of law. NDCC Secs. 32-34-01, 32-34-02. E.g., N.D. Council of School Adm'rs v. Sinner, 458 N.W.2d 280 (N.D.1990); Old Broadway Corp. v. Backes, 450 N.W.2d 734 (N.D.1990). Issuance of the writ is discretionary so that on appeal, this court will reverse a denial of an application for a writ of mandamus only if the trial court has abused its discretion. See McCallum v. City Com'rs of City of Bismarck, 393 N.W.2d 263 (N.D.1986). A trial court abuses its discretion when it misinterprets or misapplies the law. Heller v. Heller, 367 N.W.2d 179 (N.D.1985).

Christianson argues that sections 40-12-06, see n. 1, 40-12-02 and 40-39-03, NDCC, give him a clear legal right to have the proposed ordinance enacted by the city commissioners or referred to the people for a vote. The city urges us to engraft an exception to the authority bestowed by these statutes and rule that only legislative matters, not administrative matters, are subject to the initiative procedure set forth in chapter 40-12, NDCC. Because we believe the City's request is one not countenanced by the statutes in question, we reject it.

Section 40-12-02, NDCC, provides:

"Any proposed ordinance may be submitted to the governing body of the municipality by a petition signed by qualified electors thereof equal in number to fifteen percent of the votes cast for all candidates for the executive officer at the preceding regular municipal election. The petition shall be filed in the city auditor's office, and shall contain a request that the ordinance set out in the petition be submitted to a vote of the qualified electors of the city if it is not passed by the governing body of the municipality."

Section 40-39-03, NDCC, says:

"The governing body, by ordinance, may establish the grade of all streets, alleys, and sidewalks in the municipality as the convenience of its inhabitants may require. A record of the grades, together with a profile thereof, shall be kept in the office of the city engineer, or of the city auditor, if the city has no engineer. If the municipality changes the grade of any street after it has been established, it shall be liable to the abutting property owners for any damage they may sustain by reason of any permanent improvements made by them to conform to the grade as first established."

Several rules of statutory interpretation guide our analysis. The interpretation of a statute is a question of law, fully reviewable by this court. Resolution Trust Corp. v. Dickinson Econo-Storage, 474 N.W.2d 50 (N.D.1991). In interpreting statutes, we seek to fulfill the object and intent of the legislature. E.g., Ebach v. Ralston, 469 N.W.2d 801 (N.D.1990). To discern legislative intent, we look at and compare every relevant section and subsection as part of a whole. Id. Words in a statute are to be understood in their ordinary sense. NDCC Sec. 1-02-02.

On its face, section 40-12-02, NDCC, authorizes "any" ordinance to be submitted to the governing body of the municipality, subject to certain procedural requirements not at issue here. The question is: What meaning is to be given to the word "any" in the context of this statute? We have previously acknowledged that the word "any" is a general one subject to different meanings depending on the context and subject matter of the statute in which it is used. 501 DeMers, Inc. v. Fink, 148 N.W.2d 820 (N.D.1967). However, ordinarily, the word "any" in a statute means "all" or "every" and suggests a broad and expansive meaning. State v. Zueger, 459 N.W.2d 235 (N.D.1990). The subject matter of this statute, interpreted in the context of the chapter in which it is placed, makes an expansive reading of section 40-12-02, NDCC, particularly appropriate.

The legislature intended to place the ultimate power of initiative in the hands of the people. It is true that Article III, Sec. 1, N.D. Const., which reserves the right of the people to enact laws by initiative, does not reserve the power to initiate local ordinances. Pelkey v. City of Fargo, 453 N.W.2d 801 (N.D.1990). But, section 40-12-01, NDCC, et seq., expressly grant the power to city voters to initiate municipal ordinances. The breadth of that power is limited only by procedural requirements that the petition and petitioners must meet. See NDCC Sec. 40-12-02 (percentage of signatures necessary, place of filing petition, necessity of request), Sec. 40-12-03 (only qualified electors may sign petition, proper address, etc., of petitioner), Sec. 40-12-04 (oath validating signatures). We do not discern any legislative intent from the language of chapter 40-12 to limit the kind of ordinance that may be proposed to one that deals only with legislative matters rather than administrative matters. Nowhere is such a distinction made and we are reluctant to create one absent direction from the legislature.

Christianson acknowledges that while the word "any," in section 40-12-02, NDCC, should be read expansively, it is not without limitation. The proposed ordinance must be one that the city governing body is itself authorized to enact. Here, the City is authorized to establish road grade either by resolution under section 40-22-11, NDCC, 4 or by ordinance under section 40-39-03, supra. The City thus could have proceeded by ordinance. That it did not does not deprive the people from exercising their right to initiate the proposed ordinance.

In urging our adoption of an administrative/legislative dichotomy, the City relies on a host of Attorney General opinions endorsing the concept. E.g., N.D.Op.Att'y.Gen. 06 (1990); N.D.Op.Att'y Gen. 11 (1986). This court grants respectful attention to opinions by the Attorney General and will follow them if they are persuasive. Holmgren v. N.D. Workers Comp. Bur., 455 N.W.2d 200 (N.D.1990). However, Attorney General opinions are not binding upon this court and we will not follow them if they are inconsistent with the statutory interpretation that the court deems reasonable. See Ficek v. International Bro. of Boilermakers, Etc., 219 N.W.2d 860 (N.D.1974). Because we have interpreted section 40-12-02, NDCC, to authorize the initiation of all proposed ordinances that the city itself is authorized to pass, and because section 40-12-06, NDCC, limits the options of the city when it receives such a proposed ordinance to either pass the ordinance or submit it to a vote of the electorate, we decline to accept the Attorney General's opinions to the contrary.

We are aware that other courts have determined that only legislative matters are subject to municipal initiative and referendum. E.g., Heider v. Common Council of City of Wauwatosa, 37 Wis.2d 466, 155 N.W.2d 17 (1967); Housing Authority v. Superior Court, 35 Cal.2d 550, 219 P.2d 457 (1950). But see Baker v. Jackson, 372 N.W.2d 142 (S.D.1985); State v. Summers, 33 S.D. 40, 144 N.W. 730 (1913). The commonly given...

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