Daly v. Beery

• Court: North Dakota Supreme Court
• Writing for the Court: GRACE
• Citation: Daly v. Beery, 45 N.D. 287, 178 N.W. 104 (N.D. 1920)
• Decision Date: 20 April 1920
• Parties: DALY v. BEERY, County Auditor, et al.

45 N.D. 287

178 N.W. 104

DALY

v.BEERY, County Auditor, et al.

Supreme Court of North Dakota.

April 20, 1920.

Syllabus by the Court.

This action involves the constitutionality of chapter 188, Laws 1919. It is held:

That the act does not contravene the Fourteenth Amendment to the federal Constitution.

Inasmuch as two of the judges of the Supreme Court are of the opinion that the act does not violate any provision of the state Constitution, it cannot be held that the act is unconstitutional as violative of the state Constitution, in view of section 89 of the Constitution as amended (article 25, p. 503, Laws 1919), which provides that in no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges of the Supreme Court so decide.

Additional Syllabus by Editorial Stall.

Publication means to make known, a notification to the public at large, either by words, writing, or printing, and implies the means of conveying knowledge or notice.

Printing means the impress of letters or characters upon paper, or upon other substance, and implies a mechanical act.

Appeal from District Court, Grant County; Crawford, Judge.

Action for injunction by Timothy P. Daly against Robert D. Beery, as County Auditor of Grant County, and Thomas McDowell and two others, as the Board of County Commissioners of Grant County. Demurrer to complaint sustained, and plaintiff appeals. Order reversed.E. R. Lanterman, of Mandan, for appellant.

W. A. Anderson and Foster & Baker, all of Bismarck, amici curiæ.

Sullivan & Sullivan, of Mandan, and T. F. Murtha, of Dickinson, for respondents.

GRACE, J.

The plaintiff, a taxpayer, resident, and elector of Grant county, brings this action against the defendants to restrain and enjoin them from causing the official printing and publications of the county of Grant to be published or printed in any newspaper of Grant county other than the Grant County Leader, and from paying, or causing to be paid, any of the money of Grant county for any county and official printing or publication to other than the Grant County Leader.

The complaint, in substance, sets forth that the plaintiff is a resident, elector, and taxpayer of Grant county; that Beery is the duly elected, qualified, and acting county auditor of Grant county, and that the other defendants above named are the duly qualified and acting county commissioners thereof; that the Grant County Leader is printed and published in that county, and was about the 1st day of August, 1919, by the State Publication and Printing Commission, under the provisions of chapter 188 of the Session Laws of 1919, designated as the official newspaper in and for that county; that the county commissioners above mentioned, in disregard of the provisions of chapter 188, at the first meeting of the board, held in Carson, the county seat of Grant county, did, on the 5th day of January, 1920, by resolution, designate three newspapers, other than the Grant County Leader, as the official papers in and for Grant county, namely, Carson Press, New Leipzig Sentinel, and Shields Enterprise; that none of said papers last mentioned were designated as official newspapers by the State Publication and Printing Commission, though they have complied with the requirements of article 82 of chapter 38 of the Political Code of the State of North Dakota, as contained in the C. L. 1913; that the defendants, at their January, 1920, meeting, awarded to the said three newspapers official reports of the board of county commissioners for publication, and that they have printed and published the same; and that unless the defendants are restrained they will continue to cause the publication of all subsequent proceedings of said board of county commissioners, and all legal and official printing and publication of Grant county to be published and printed in the three newspapers above mentioned, and unless restrained and enjoined will cause the money of Grant county to be expended for said publication and printing at legal rates.

The defendants demurred to the complaint on the grounds that it does not state facts sufficient to constitute a cause of action.

The demurrer, in further allegations, challenges the constitutionality of chapter 188, claiming it is unconstitutional on the ground that it is in conflict with sections 58 and 61, and what is commonly designated as the home-rule provisions of the Constitution, which are sections 166 to 173, inclusive; and further claims that it contravenes the Fourteenth Amendment to the Constitution of the United States; and maintains that it abridges their privileges and immunities as citizens of the United States, and deprives them, as such, of due process of law; and maintains that the law in question confers an arbitrary and unreasonable power upon the State Publication and Printing Commission by conferring upon them the authority to name the official newspapers of the various counties of the state in which the publication of process and notices and other matters, the publication of which is required or authorized by law, must be published. The demurrer was heard before W. C. Crawford, Judge, who entered an order sustaining it.

We may consider the sections of the Constitution involved in the order in which they are above set forth.

Section 58 thereof is as follows:

“No law shall be passed, except by a bill adopted by both houses, and no bill shall be so altered and amended on its passage through either house as to change its original purpose.”

Section 61 is as follows:

“No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only as to so much thereof as shall not be so expressed.”

In the preamble, found at the very beginning of our Constitution, and as an appropriate heading to the Bill of Rights, which consists of the first 24 sections thereof, stand the following expressive words:

“We, the people of North Dakota, grateful to Almighty God for the blessings of civil and religious liberty, do ordain and establish this Constitution.”

Section 2 of the Bill of Rights is as follows:

“All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”

By section 25 of the Constitution, prior to its amendment by article 26, the legislative power was vested in a Senate and House of Representatives. Since its amendment the legislative power is vested in the House and Senate, excepting as reserved to the people by the constitutional amendment to section 25 (see Laws 1919, p. 503), which provides a method for the initiating of laws by the people, irrespective of the Legislature, and the referending of laws enacted by the Legislature, each of such powers to be exercised under the conditions named in said constitutional amendment.

The will of the people, as expressed in law by the Legislature, or a law initiated and adopted by them, or law passed by the Legislature and referended, and favorably passed upon by them, is the supreme law of this state, and can be declared invalid by the courts only for two reasons, viz.: (1) That it is contrary to a provision or provisions of the Constitution of the state; (2) that it contravenes a provision or provisions of the Constitution of the United States.

If a law duly enacted by any of the methods above mentioned is not invalid for either of the causes above stated, it stands as an expression of the supreme will of the people of this state, and, under the Constitution, the courts have neither authority nor power to declare it invalid.

In this connection it is well to bear in mind that the powers of government, either state or federal, are divided into three separate classes, viz. legislative, executive, and judicial. These powers are exercised by three distinct and separate branches of government, corresponding in name with the classes of powers mentioned.

If each of the branches, in consonance with the provisions of the Constitution, would exercise such powers only as are thus distributed to it, and will fully recognize that the other co-ordinate branches of the government have certain duties distributed to each of them, which it is their right, duty, and privilege, under the Constitution, exclusively to exercise, the harmonious operation and conduct of government, and the exercise of governmental powers, would become less difficult, and there would be less conflict in the operation of such delegated powers, and the supreme will of the people, when legally expressed under the Constitution, would much more readily be carried into effect.

[1] With these observations in mind, we may proceed to determine whether the charge that chapter 188 is unconstitutional contains any merit. If it is not unconstitutional, it must follow that it is a valid and subsisting law, and that it has been such ever since 30 days after its adoption by the voters at an election held pursuant to law, where it was voted upon as a referended measure, and there received a majority of the votes voting thereon.

The law is claimed to be unconstitutional, and contrary to the provisions of section 58 of the Constitution, in this: that the bill for the act was so altered and amended in its passage in the Senate as to change its original purpose.

Chapter 188 was Senate Bill No. 157. The original purpose of the bill, as expressed in its title as originally introduced, is as follows:

“An act creating a State Publication and Printing Commission; prescribing its duties and powers; and repealing all acts and parts of acts conflicting therewith.”

It made no reference to the appointment of an official newspaper in the counties in which should be printed the official proceedings of the board of county commissioners of the county, or in which all legal notices...