Egbert v. City of Dunseith

Citation24 N.W.2d 907,74 N.D. 1
Decision Date16 March 1946
Docket Number7000.
CourtUnited States State Supreme Court of North Dakota

Rehearing Denied April 16, 1946.

Syllabus by the Court.

1. The Constitution of the state of North Dakota is its paramount law. It is a self-imposed restraint upon the people of the state in the exercise of their governmental sovereign power either by themselves through the initiative or by their agency, the Legislature.

2. The Constitution is not immutable and may be repealed or amended in the manner prescribed by its own provisions.

3. Though repeals by implication are not favored the provisions of a Constitution may be impliedly repealed or abrogated by the adoption of changes in other portions which render such provisions obnoxious or ineffective.

4. A Constitution, like other laws, is subject to construction by the courts, but it is a cardinal rule of construction that a Constitution must be so construed as to give effect to the intention of the people who adopted it.

5. Generally speaking principles of construction applicable to statutes are also applicable to Constitutions.

6. One rule applied in the construction of statutes is that where one statute adopts the particular provisions of another by a specific and descriptive reference to the statute or provision adopted, the effect is the same as though the statute or provision adopted had been incorporated bodily into the adopting statute. Such adoption takes the statute as it existed at the time of adoption and does not include subsequent additions or modifications of the statute so taken, unless it does so by express intent or necessary implication.

7. Article 20 of the Constitution of North Dakota prohibited every form of traffic in intoxicating liquor in the state. In 1918 section 185 of the Constitution was amended to provide 'The state, any county or city * * * may engage in any industry, enterprise or business not prohibited by Article 20 * * *.' Subsequently Article 20 was repealed. Held, for reasons stated in the opinion, that the repeal of Article 20 did not affect section 185 as amended, and the negation of the liquor traffic in section 185 continued in effect as though there had been no repeal.

Alvin C. Strutz, of Bismarck, for appellants.

John A. Stormon, of Rolla, for respondents.

Chas H. Shafer, of Hillsboro, and P. M. Clark, of Mohall, amici curiae.

NUESSLE Judge.

This is a taxpayers suit brought by plaintiffs on behalf of themselves and all other taxpayers of the city of Dunseith to enjoin the defendants, the Mayor and members of the city council, from taking any action toward the establishment and maintenance of a municipal liquor store.

The facts are stipulated. The City of Dunseith by a majority vote of its electors at a special election held for that purpose, voted in favor of the establishment of a municipal liquor store. Pursuant to this vote the defendants proposed to establish such a store in the city. This action was then begun. After hearing had the trial court held for the defendants, denied the injunction, and dismissed the action. Judgment was entered accordingly. Whereupon the plaintiffs perfected this appeal.

Plaintiffs contend here, as they did in the trial court, that under the provisions of section 185 of the Constitution of North Dakota, hereinafter set forth, the city may not engage in the liquor business. The defendants take issue with this contention. They insist that not only does section 185 authorize a city to engage in any industry, enterprise or business, including the liquor business, but that it is self-executing and without any action on the part of the Legislature a city may engage in that business; that even if section 185 be not self-executing the Legislature has acted in that behalf and authorized cities to engage in and carry on that business and provided for its licensing and regulation.

Section 185 of the Constitution provides: 'The state, any county or city may make internal improvements and may engage in any industry, enterprise or business, not prohibited by article 20 of the constitution, but neither the state nor any political subdivision thereof shall otherwise loan or give its credit or make donations to or in aid of any individual association or corporation except for reasonable support of the poor, nor subscribe to or become the owner of capital stock in any association or corporation.'

As originally adopted section 185 read: 'Neither the state nor any county, city, township, town, school district or any other political subdivision shall loan or give its credit or make donations to or in aid of any individual, association or corporation, except for necessary support of the poor, nor subscribe to or become the owner of the capital stock of any association or corporation, nor shall the state engage in any work of internal improvement unless authorized by a two-thirds vote of the people.'

It was first amended in 1914 by adding thereto: 'Provided, that the state may appropriate money in the treasury or to be thereafter raised by taxation for the construction or improvement of public highways.' Thereafter it was amended to its present form by article 32 of the Amendments to the Constitution, approved and ratified at the general election on November 5, 1918.

Article 20 of the Constitution provided: 'No person, association or corporation shall within this state, manufacture for sale of gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article, and shall thereby provide suitable penalties for the violation thereof.' This article was adopted as a part of the original Constitution by a separate vote of the people at the time (October 1, 1889) of the adoption of the Constitution, as provided by section 20 of the Schedule and Ordinance. It was repealed by constitutional amendment submitted by initiative petition at the general election on November 8, 1932.

The Constitution of the state is its paramount law. It is a self-imposed restraint upon the people of the state in the exercise of their governmental sovereign power, either by themselves through the initiative or by their agency, the Legislature. See, State v. First State Bank of Jud, 52 N.D. 231, 202 N.W. 391; Baird v. Burke County, 53 N.D. 140, 205 N.W. 17; State v. Houge, 67 N.D. 251, 271 N.W. 677. It is not immutable and may be repealed or amended in the manner prescribed by section 202 thereof. Though repeals by implication are not favored the provisions of a Constitution may be impliedly repealed or abrogated by the adoption of changes in other portions which render such provisions obnoxious or ineffective. 18 C.J.S., Constitutional Law, § 7, p. 30. And a Constitution like other laws is subject to construction by the courts. 'But it is a cardinal rule of construction that a constitution must be so construed as to give effect to the intention of the people who adopted it.' Barry v. Traux, 13 N.D. 131, 99 N.W. 769, 772, 65 L.R.A. 762, 112 Am.St.Rep. 662, 3 Ann.Cas. 191. And see, Cooley Constitutional Limitations, vol. 1, 8th Ed., p. 124, et seq., 11 Am.Juris. p. 674. 'Generally speaking, principles of construction applicable to statutes are also applicable to constitutions, but not to the extent of defeating the purposes for which a constitution is drawn.' 16 C.J.S., Constitutional Law, § 15, p. 51, and cases cited; 11 Am.Juris. p. 68.

When the people amended section 185 of the constitution to its present form, they said 'The state, any county or city * * * may engage in any industry, enterprise or business, not prohibited by article 20 of the constitution * * *.' This amendment created a new governmental function--that of engaging in and carrying on commercial and industrial enterprises theretofore considered as private, in competition with private business. The proponents of the amendment and those who voted for its adoption must have believed it was essential to enable the state government to engage in these enterprises, otherwise they would not have proposed and adopted it. See, in this connection, State ex rel. Coleman v. Kelly et al., 71 Kan. 811, 81 P. 450, 70 L.R.A. 450, 6 Ann.Cas. 298; Rippe v. Becker, 56 Minn. 100, 57 N.W. 331, 22 L.R.A. 857; White Eagle Oil & Refining Company v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397, and cases cited. The amendment was permissive in its nature. It excepted and excluded from this permission only one business: the liquor business. It did not denominate that business in those words but designated it by particular and specific reference to Article 20 of the Constitution which pertained solely to that business. There can be no question but that when the people adopted the amendment they intended the business prohibited by Article 20 was the one business in which the state, its counties and its cities might not engage. And it is to be noted that the amendment contained no express intent that the repeal of Article 20 should in any way affect it.

The defendants argue that though the reference in the amendment to Article 20 was particular and specific, the people intended merely that the state and its municipal agencies might not engage in any business that was prohibited by law; that this was done only to avoid a conflict between section 185 in its amended form and Article 20; that there was no intention that should Article 20 subsequently be repealed the exception thus incorporated into section 185 should continue in effect; that therefore when Article 20 was repealed this exception was impliedly...

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