Larkin v. Gronna
| Decision Date | 22 March 1939 |
| Docket Number | 6591 |
| Citation | 285 N.W. 59,69 N.D. 234 |
| Court | North Dakota Supreme Court |
Rehearing Denied April 18, 1939.
Syllabus by the Court.
1. After the state canvassing board has examined the certified abstracts of votes cast for state officers, canvassed the returns made, and certified to the secretary of state the name of the person duly elected to a state office, it is the duty of the secretary to prepare a certificate of election for such person elected and to show therein not only that he was elected to the office, but also to specify the term of years of the office. Sec. 1023, C.L.
2. Adopting an amendment to the state constitution is not the exercise of legislative power in its ordinary sense. When such amendment is proposed by initiative petition it is the exercise of the power of the people to change the constitution at will except so far as the exercise may be limited by some provision of the federal constitution or of a provision of the constitution of this State. The people are supreme in determining what the constitution shall be.
3. Section 61 of the constitution of this State, providing " No bill shall embrace more than one subject, which shall be expressed in its title, * * *," is not applicable to proposed amendments to the state constitution, but refers to legislative enactments only.
4. An amendment to the constitution of this State may be proposed by initiative petition of the electors, and when so proposed it is subject to the provisions of section 25 of the constitution requiring the petition embodying the proposed measure contain the full text of the measure, be signed by the required number of electors, and the measure be placed upon the ballot and submitted by a ballot title which shall fairly represent its subject matter.
5. Where an initiative petition proposes to amend the constitution of this State, section 25 of the constitution provides:
6. When an initiative petition proposing to amend the state constitution was filed with the secretary of state as required by the constitution and the secretary of state passed thereon as he did herein, he determined that the petition was signed by the requisite number of electors, that it contained the full text of the measure proposed, and that it had a sufficient title, and when thereafter he submitted the measure to the people at the general election for their approval or rejection under the ballot title so prepared, he thereby decided that all of the constitutional provisions had been complied with, and no review of such decision having been sought prior to the election, the decision of the secretary of state is final and is not subject to review by this court thereafter.
7. The declaration of section 64 of the state constitution, to-wit: " No bill shall be revised or amended, nor the provisions thereof extended or incorporated in any other bill by reference to its title only * * *," is not applicable to a proposed amendment to the constitution of the State.
8. By the terms of an amendment to section 82 of the constitution, adopted by the people at the primary election in June 1938, the term of office of railroad commissioners was reduced from the period of six years to a period of two years, and the candidate elected as railroad commissioner at the general election in November 1938 was elected for the term of two years only, even though at the primary election he had been nominated for the term then fixed at six years.
Appeal from District Court, Morton County; H. L. Berry, Judge.
Mandamus proceeding by Ben C. Larkin against James D. Gronna, as Secretary of State for the State of North Dakota, to compel the respondent to issue a certificate to the effect that petitioner had been elected to the office of Railroad Commissioner for a term of six years. From an order in favor of the petitioner, the respondent appeals.
Order reversed.
A. C. Strutz, Attorney General, for respondent and appellant.
The secretary of state, in the performance of his duties, in the issuance of certificates of election, acts only in a ministerial capacity and has no discretion and is without authority to question in any way the legality of the acts passed upon and approved by the people. Schmidt v. Gronna, 68 N.D. 488, 281 N.W. 57.
James M. Hanley, Jr., for petitioner and respondent.
If the amendment were not properly completed, it would unquestionably be the duty of the court to declare it not a part of the Constitution. State ex rel. Fargo v. Wetz, 40 N.D. 299, 168 N.W. 835.
In the absence of specific and definite constitutional provisions which place a final decision in some other officer or department, the judicial authority of the state extends over from the people in the amending process. Dodd, Revision & Amendment of State Constitutions, p. 211.
Chapter 135 of the Session Laws of 1925 must be followed in submitting petitions for the amendments to the state Constitution. Wood v. Byrne, 60 N.D. 1, 232 N.W. 303; Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741; Preckel v. Byrne, 62 N.D. 634, 244 N.W. 781; State ex rel. Gammons v. Shafer, 63 N.D. 128, 246 N.W. 874; State ex rel. Cox v. Gray, 67 N.D. 148, 271 N.W. 133.
A constitutional provision requiring that every act shall relate to one subject, to be expressed in the title, is as applicable to an initiated statute as to a legislative enactment. Preckel v. Byrne, 62 N.D. 634, 244 N.W. 781; annotation in 62 A.L.R. 1351.
Where two amendments are presented to the voters, which are distinct and unrelated, the electors should have and must have an opportunity to vote for or against such provisions. State ex rel. Fargo v. Wetz, 40 N.D. 299, 168 N.W. 835.
The provisions of § 64 of the state Constitution govern and control the submission of constitutional amendments by initiative measure. Dyer v. Hall, 51 N.D. 391, 199 N.W. 754.
Sections of the state Constitution, which by their terms refer to legislative enactments, are to be applied to limit and regulate and apply to initiated and referred legislation, the same as to laws passed by the legislative assembly. State v. Shafer, 63 N.D. 128, 246 N.W. 874.
The title must fairly indicate the general subject of the proposed act. Chaffee v. Farmers Elevator Co. 39 N.D. 585, 168 N.W. 616; Gable v. Young, 157 N.W. 325; Stutsman v. Light, 68 N.D. 513, 281 N.W. 777.
No method of amendment can be tolerated which does not provide the electorate adequate opportunity to be fully advised of proposed changes. Com. v. Beamish (Pa.) 164 A. 615; Heinitsh v. Floyd, 126 S.E. 336.
The secretary of state has the duty of seeing that a constitutional amendment or an initiated or referred measure is fully and fairly stated on the ballot as well as having the ballot title printed. Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741; Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687.
Statutes can be applied to the amending process. Wood v. Byrne, 60 N.D. 1, 232 N.W. 303; Boyd v. Jordan (Cal.) 35 P.2d 533.
John F. Sullivan and Charles A. Verret, amici curie.
The proposal of amendments to the Constitution is not the exercise of an ordinary legislative function and is not subject to the constitutional provisions regulating the introduction and passage of ordinary legislative amendments. 12 C.J. 673; State ex rel. Wineman v. Dahl, 6 N.D. 81, 68 N.W. 418; 12 C.J. 693; Cooney v. Foote, 83 S.E. 537, Ann. Cas. 1916B, 1001.
In determining the effect of irregularities due to mistake of election officers, it should be remembered that all statutes tending to limit the citizen in the exercise of the right of suffrage are to be construed liberally in his favor. 9 R.C.L. 1093; Swanson v. State, 132 Neb. 82, 271 N.W. 264.
Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. 25 R.C.L. 957.
Burr, J. Nuessle, Ch. J., and Christianson, J., and Englert, Dist. J., Concur. Burke, J., being disqualified did not participate; Hon. M. J. Englert, Judge of the First Judicial District, sitting in his stead. Morris, J. (dissenting).
In 1932 the petitioner was elected a member of the board of railroad commissioners for a term of six years.
At the primary election held on June 28, 1938, there was submitted by initiative petition, and adopted by the people, a proposed amendment to § 82 of the Constitution, as follows:
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