Larkin v. Gronna, No. 6591.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtBURR
Citation69 N.D. 234,285 N.W. 59
PartiesLARKIN v. GRONNA, Secretary of State.
Docket NumberNo. 6591.
Decision Date18 April 1939

69 N.D. 234
285 N.W. 59

LARKIN
v.
GRONNA, Secretary of State.

No. 6591.

Supreme Court of North Dakota.

March 22, 1939.
Rehearing Denied April 18, 1939.


[285 N.W. 60]


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: “The secretary of state shall pass upon each petition, and if he finds it insufficient he shall notify the ‘committee for the petitioners' and allow twenty days for correction or amendment. All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. But if the sufficiency of such petition is being reviewed at the time the ballot is prepared, the secretary of state shall place the measure on the ballot and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon. If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it.”

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.

MORRIS, J., dissenting.

[285 N.W. 61]

A. C. Strutz, Atty. Gen., for appellant.

James M. Hanley, Jr., of Mandan, for respondent.


John F. Sullivan, of Mandan, and Chas. A. Verret, of Bismarck, amici curiæ.

BURR, Judge.

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 section 82 of the constitution, as follows:

“An Act to amend and re-enact Section 82 of the Constitution of the State of North Dakota relating to the election of State Officials, and providing for the election on a No-party Ballot of a Tax Commissioner for a term of four years.

Be it enacted by the People of the State of North Dakota:

Section 82 of the Constitution of the State of North Dakota is hereby amended and re-enacted to read as follows:

There shall be chosen by the qualified electors of the State at the times and places of choosing members of the legislative assembly, a secretary, auditor, treasurer, superintendent of public instruction, commissioner of insurance, three commissioners of railroads, an attorney general, a commissioner of agriculture and labor, and a tax commissioner, who shall have attained the age of twenty-five years and shall have the qualifications of state electors. They shall severally hold their offices at the seat of government for the term of two years and until their successors are elected and duly qualified; but no person shall be eligible for the office of treasurer for more than two consecutive terms; provided, however, the tax commissioner shall hold his office for the term of four years and until his successor is elected and duly qualified.

The tax commissioner shall be elected on a no-party ballot and he shall be nominated and elected in the manner now provided for the nomination and election of the superintendent of public instruction.

The first election of a Tax Commissioner shall not occur until the year 1940.”

At this primary election the petitioner was nominated to succeed himself for the term beginning January 3, 1939, and reelected at the general election in November 1938.

After the state board had canvassed the returns of votes cast at the general election the respondent, who is secretary of state, tendered a certificate showing the petitioner elected for a period of two years. This certificate was refused on the ground that the term was six years, and upon refusal of the respondent to issue a certificate to this effect the petitioner applied

[285 N.W. 62]

to the district court for a writ of mandamus to compel its issuance. The lower court so ordered and respondent appealed.

The respondent bases his refusal upon the grounds that the constitutional amendment adopted in June 1938 had limited the term of office to two years; that he is purely a ministerial officer and has no “authority to in any way question the propriety of the measures submitted or their legal sufficiency, other than provided by law. * * * * and that until such time as the courts of this state, after judicial review and appropriate proceedings hold the said amendment to section 82 unconstitutional, that your respondent cannot lawfully do the things commanded in the said alternate writ of mandamus, that is to say, cannot lawfully issue a certificate of election to the petitioner in the above entitled proceedings for a term of more than two years.”

[1] Under the statutes of this state it is the duty of the state canvassing board to examine the certified abstracts of votes cast for state offices, canvass the returns made, and certify to the secretary of state “what persons have been by the greatest number of votes duly elected to such offices * * *.” Sections 1016 to 1019, Compiled Laws. This officer must then prepare a certificate for each person elected, which certificate, in this case, must show not only that the petitioner was elected to the office of railroad commissioner, but must also specify the term of years of his office. Section 1023, Compiled Laws.

This is his duty and he may not ignore this duty simply because some question may arise as to the validity of the amendment adopted. Even if he were acting in a ministerial capacity only, he is sworn to discharge the duties of his office and must pass upon the question for his own action. He did so herein and issued a certificate showing the term of office to be two years, thus in effect holding that the proposed constitutional amendment had been legally adopted.

The petitioner contends:

“1. That the amendment contains more than one subject in violation of Section 61 of the Constitution.

2. That neither the title of the act, nor the ballot title, fairly represent the amendment and the change referring to the Board of Railroad Commissioners is not contained therein.

3. That the omitted and inserted portions of the amendment were not emphasized upon the ballot in compliance with section 960 of the 1913 Compiled Laws, and were not emphasized in the advertising by the Secretary of State in compliance with section 961 of the 1913 Compiled Laws.

4. That the amendment does not contain the full text thereof in view of the attempt to incorporate into the Constitution a section of the statutes by reference only in that the amendment provides...

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10 practice notes
  • Keenan v. Price, 7464
    • United States
    • United States State Supreme Court of Idaho
    • June 30, 1948
    ...to have determined that this amendment is for the public good and expresses the free opinion of a sovereign people." Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, at page 63. Courts should, after an amendment has been adopted, be slow to declare the same unconstitutional on technical grounds,......
  • Watland v. Lingle, No. 25487.
    • United States
    • Supreme Court of Hawai'i
    • February 24, 2004
    ...to have determined that [the] amendment is for the public good and expresses the free opinion of a sovereign people." Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 63 Kahalekai v. Doi, 60 Haw. 324, 331, 590 P.2d 543, 549 (1979). Moreover, where it is alleged that the legislature has acted unc......
  • Moore v. Brown, No. 38381.
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1942
    ...constitution contains the same provision. See also: State ex rel. Laird v. Hall, 49 N.D. 11, 17, 186 N.W. 284, 286-7; Larkin v. Gronna, 69 N.D. 234, 241, 285 N.W. 59, 63(6-8). And there is an analogous decision in this state holding that where a primary election contest is not decided befor......
  • City of Fargo v. Sathre, No. 7119.
    • United States
    • United States State Supreme Court of North Dakota
    • February 11, 1949
    ...subsequently that the objection was not good and his action in substituting another title was improper. In the case of Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 65, we had occasion to consider and pass upon a contention in substance practically identical with that made here. In that case ......
  • Request a trial to view additional results
11 cases
  • Keenan v. Price, 7464
    • United States
    • United States State Supreme Court of Idaho
    • June 30, 1948
    ...to have determined that this amendment is for the public good and expresses the free opinion of a sovereign people." Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, at page 63. Courts should, after an amendment has been adopted, be slow to declare the same unconstitutional on technical grounds,......
  • Watland v. Lingle, No. 25487.
    • United States
    • Supreme Court of Hawai'i
    • February 24, 2004
    ...to have determined that [the] amendment is for the public good and expresses the free opinion of a sovereign people." Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 63 Kahalekai v. Doi, 60 Haw. 324, 331, 590 P.2d 543, 549 (1979). Moreover, where it is alleged that the legislature has acted unc......
  • Moore v. Brown, No. 38381.
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1942
    ...constitution contains the same provision. See also: State ex rel. Laird v. Hall, 49 N.D. 11, 17, 186 N.W. 284, 286-7; Larkin v. Gronna, 69 N.D. 234, 241, 285 N.W. 59, 63(6-8). And there is an analogous decision in this state holding that where a primary election contest is not decided befor......
  • City of Fargo v. Sathre, No. 7119.
    • United States
    • United States State Supreme Court of North Dakota
    • February 11, 1949
    ...subsequently that the objection was not good and his action in substituting another title was improper. In the case of Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, 65, we had occasion to consider and pass upon a contention in substance practically identical with that made here. In that case ......
  • Request a trial to view additional results

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