Cuthbert v. Smutz
| Decision Date | 21 November 1938 |
| Docket Number | 6543 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Under the provisions of Section 67 of the Constitution of this State the legislative assembly is empowered to declare any act an emergency measure, except an " act granting a franchise or special privilege, or act creating any vested right or interest other than in the state", and when such declaration of emergency is adopted by a vote of two-thirds of the members present and voting and is set forth in the act, such emergency measure takes effect and is in force from and after its passage and its approval by the governor.
2. Such declaration of emergency when so adopted is conclusive upon the courts of this State.
3. When the people of this State adopted the principle of the referendum they reserved to themselves the power of passing upon any measure enacted by the legislature, but under the provisions of Section 25 of the Constitution when a referendum petition is filed against an emergency measure such measure
4. The power to declare an act an emergency measure, granted to the legislature under the provisions of Section 67 of the Constitution, is not affected by the constitutional provisions set forth in Section 25 of the Constitution dealing with the operation of the initiative and referendum and which provides: " Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper restrict or impair the exercise of the right herein reserved to the people." The constitutional provision providing for the referendum recognizes the power of the legislature to declare a measure an emergency measure, accepts its declaration as conclusive, and makes provision for the effect thereof.
5. Chapter 271 of the Session Laws of 1935 contained in the act the declaration of the legislature that it was an emergency measure and therefore such act was in full force and effect from and after its passage and approval and until it was repealed by the people under the reserve power of the referendum, at the election held June 24, 1936.
6. Said Chapter 271 of the Session Laws of 1935 prescribed rates of taxation upon all income and was " effective on all income received during the year ending December 31, 1935."
7. It was the duty of a taxpayer, during the time such law was in force and effect, to file his return on his income received during the year ending December 31, 1935, compute the amount of tax due thereon and pay the same to the state treasurer on or before the 15th day of March 1936, and the subsequent repeal of said law by the people, under the reserve power of the referendum, did not relieve the taxpayer from this duty and obligation.
Appeal from District Court, Ramsey County; G. Grimson, Judge.
Action by Frederic T. Cuthbert against Bert Smutz, as Sheriff of Ramsey County to recover income taxes paid under protest. From an order sustaining a demurrer to the complaint, plaintiff appeals.
Affirmed.
Sinness & Duffy and Traynor & Traynor, for appellant.
A demurrer does not admit facts which the court will take judicial notice are not true nor does the rule apply to legally impossible facts. 49 C.J. 440, 441.
Where the legislature has declared an emergency which is patently and admittedly false and has done so solely for the purpose of hampering the free exercise of the referendum, is such declaration conclusive? 11 Am. Jur. pp. 712-715.
With reference, however, to a legislative determination and declaration of the existence of an emergency, the view now prevalent is that such a question is primarily for the legislature to determine and that although the legislative determination is entitled to great respect, it is not conclusive because the courts possess the final authority to determine whether an emergency in fact exists. 11 Am. Jur. pp. 823-825.
While the opinion of the legislature, in itself alone, does not necessarily prove that such emergency exists in fact, nevertheless its declaration is entitled to great respect. State ex rel. Cleveringa v. Klein, 63 N.D. 514-527, 249 N.W. 118, 86 A.L.R. 1523; State ex rel. Linde v. Packard, 35 N.D. 298-317, 160 N.W. 150, L.R.A.1917B, 710; Baird v. Burke County, 53 N.D. 140, 205 N.W. 17.
A court is not at liberty to shut its eyes to an obvious mistake when the validity of a law to control rents depends upon the truth of what is declared in it. Chastleton Corp. v. Sinclair, 264 U.S. 543, 68 L. ed. 841; Mugler v. Kansas, 123 U.S. 623, 31 L. ed. 205.
The legislature has no right to disregard it nor nullify it by attaching an emergency clause to a law that in fact is not an emergency law. Johnson v. Jones, 48 S.D. 260, 204 N.W. 15.
Declaration that act is an emergency measure is nugatory unless it is in fact such a measure. Dinneen v. Rider, 153 Md. 343, 136 A. 754; Hodges v. Snyder, 43 S.D. 166, 178 N.W. 577.
The legislature cannot deprive the people of this constitutional right to have laws referred to them, or defeat such rights by a subsequent repeal of an act and its substantial enactment in another statute. 59 C.J. 688; State v. Becker (Mo.) 240 S.W. 299, 231; 59 C.J. 1141.
Among decisions sustaining the right of the courts to ultimately determine the validity of the emergency provision are the following: McClure v. Nye (Cal.) 133 P. 1145; Amos v. Conkling, 99 Fla. 206, 126 So. 283; Graham v. Dye, 308 Ill. 283, 139 N.E. 390; McIntyre v. Com. (Ky.) 297 S.W. 931; Merrill v. Lowell (Mass.) 128 N.E. 862; People v. Stambosva, 210 Mich. 436, 178 N.W. 226; Barbour v. Lindsay (Mich.) 145 N.W. 98; State v. Becker, 289 Mo. 660, 233 S.W. 641; Westhues v. Sullivan (Mo.) 224 S.W. 327; State v. Stewart, 57 Mont. 144, 187 P. 641; State Bd. v. Newark Milk Co. 118 N.J.Eq. 504, 179 A. 116; Todd v. Tierney, 38 N.M. 15, 27 P.2d 991; Culhane v. Equitable Life Assur. Soc. (S.D.) 274 N.W. 315; State v. Hinkle, 152 Wash. 221, 277 P. 827; Payne v. Graham (Me.) 107 A. 709, 7 A.L.R. 516.
An unqualified repeal operates to destroy inchoate rights, as a release of imperfect obligations and as a remission of penalties and forfeitures dependent upon the destroyed statute. Hertz v. Woodman, 218 U.S. 205, 216, 54 L. ed. 1001, 30 S.Ct. 621.
As a general rule the r
Original Opinion of May 23, 1938, Reported at 68 N.D. 641.
without any reservation takes away all remedies given by the repealed statute and defeats all actions and proceedings pending under it at the time of its repeal. 59 C.J. 1189.
When disapproved by the people at the referendum election, a legislative act has no force or effect as such. 59 C.J. 719.
Where a right given by a statute is not by nature a vested right and at the time of the repeal of the statute is still choate as where it has not been reduced to judgment or otherwise executed it will fall with the statute unless expressly excepted. 59 C.J. p. 1188, § 724.
The controlling character of the referendum section of the Constitution and its freedom from interference by the legislature has been repeatedly recognized by this court. Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741; State ex rel. Byrne v. Baker, 65 N.D. 190, 262 N.W. 183.
Alvin C. Strutz, Attorney General, and T.A. Thompson and B.F. Tillotson, Assistant Attorneys General, for respondent.
The demurrer admits all allegations of fact well pleaded in the complaint; but does not admit conclusions of law; nor allegations of opinion or construction of the legal meaning and effect of a statute. 49 C.J. 426-438; Greef v. Equitable Life Assur. Soc. (N.Y.) 46 L.R.A. 288; Torgerson v. Minneapolis, St. P. & S. Ste. M.R. Co. 49 N.D. 1095, 194 N.W. 741; Johnson v. Minneapolis, St. P. & S. Ste. M.R. Co. 54 N.D. 351, 209 N.W. 786; Beatty v. Smith (S.D.) 189 N.W. 675; Holgerson v. Devils Lake, 63 N.D. 155, 246 N.W. 641.
Acts providing for the support of the state and to meet deficiencies in its funds are generally held to be emergency measures in fact, when so declared by the legislative assembly, and in some states are not subject to referendum. 59 C.J. § 251, PP. 694, 695; State v. Hinkle (Wash.) 297 P. 1071; Moreton v. Haggerty (Mich.) 216 N.W. 450.
It is for the legislature to ascertain and declare the fact of the existence of the emergency, and their determination is not reviewable elsewhere. Biggs v. McBride, 17 Or. 640, 21 P. 878; Kadderly v. Portland, 44 Or. 118, 74 P. 710; Stanley v. Gates, 19 S.W.2d 1000, 1005; Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559.
Whether a law is in its substance and effect a law for the preservation of the public peace, health, or safety, or for the support of the state government and its existing public institutions, is a question for the courts to decide. Hodges v. Snyder (S.D.) 178 N.W. 575.
Since the adoption of the initiative amendment to the Constitution the legislature has been without power to declare an emergency to exist in the enactment of a law and thereby precluded the application of the referendum thereto, unless the fact be one within the class excepted from the operation of the referendum. State ex rel. Richards v. Whishman, 36 S.D. 260, 154 N.W. 707, L.R.A.1917B, 1; Hodges v. Snyder, 43 S.D. 166, 178 N.W. 575.
There must be a legislative declaration in a separate section that it is necessary for the preservation of the public peace, health or safety. Todd v. Tierney (N.M.) 27 P.2d 991.
The repeal of a statute does not operate to impair or otherwise...
To continue reading
Request your trial