McCarney v. Meier

Decision Date12 December 1979
Docket NumberNo. 9679,9679
Citation286 N.W.2d 780
PartiesRobert P. McCARNEY, on behalf of the Committee for the Petitioners, Petitioner, v. Ben MEIER, as Secretary of State of the State of North Dakota, Respondent. Civ.
CourtNorth Dakota Supreme Court

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for petitioner; argued by Patrick A. Conmy, Bismarck.

Allen I. Olson, Atty. Gen., and Murray G. Sagsveen, Sol., Bismarck, for respondent; argued by Murray G. Sagsveen, Sol., Bismarck.

PEDERSON, Justice.

This is an original proceeding under Article 105, Constitution of North Dakota, to review the decision of the secretary of state (Meier) that the petition to refer House Bill 1221, which was passed at the Forty-sixth Session of the Legislative Assembly, popularly called the "Cross Ranch Bill," was insufficient and would not be placed on the ballot for a vote of the people. We reverse the decision and direct that the matter be placed on the ballot.

The bill appropriated moneys in the Vietnam bonus fund for the "acquisition of the cross ranch and other land for designation as the veterans memorial state park" (Ch. 39, S.L.1979). Shortly after its passage and approval, a sponsoring committee (McCarney) was formed to refer the bill to a vote of the people.

As required by Article 105 of the Constitution, the petition was first presented by McCarney to Meier for approval as to form. The significant part of the petition form for our purposes, which was approved by Meier, contained the following:

                    Month                               RESIDENCE           P.O. ADDRESS
                     Day     NAME OF ELECTOR    (Identify by Street No.,    CITY--STATE
                    Year                           Twp., or Precinct)
                   3/24/79  JOHN DOE (SAMPLE)  Hay Creek Twp.,Burleigh Co.  Bowman, N.D
                2                                                                        "

At the time McCarney filed the petitions in Meier's office on July 8, 1979, they bore 13,270 signatures, 914 more than were required to refer the measure. None of the signatures has been found to be invalid, but 1,150 were rejected because of incomplete addresses. The remaining signatures accepted by Meier were insufficient under Article 105 to allow the "Cross Ranch Bill" to be referred to the electors.

Meier returned the petitions to McCarney on July 23, 1979, "for correction or amendment" as provided in Section 6, of Section 1, 1 of Article 105, allowing 20 days to obtain complete post-office addresses for signers from the larger cities in the state who had inserted only city and state in the column headed "P.O.ADDRESS" and gave no street address in the column headed "RESIDENCE."

Meier instructed McCarney that each petition that required correction must be returned to the same person who circulated that petition so that the circulator could have each signer, whose address needed to be completed, write in his or her complete address. McCarney did not comply with Meier's instructions but re-filed the petitions on August 8, 1979, after the committee had inserted house numbers and street addresses, by the use of directories, for the signers who had failed to do so.

When no further attempt was made to "correct" the petitions in the manner suggested by Meier, on August 24, 1979, McCarney was informed that the petitions were rejected and the referral would not be placed on the ballot. McCarney petitioned this court for review.

Scope of Review Under Article 105

Section 6 of Article 105, Constitution of North Dakota, provides in part:

"All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. . . . If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it."

Section 7 of Article 105 states in part that:

"All decisions of the secretary of state in the petition process are subject to review by the supreme court in the exercise of original jurisdiction."

Meier submits that in reviewing the secretary of state's determination this court is governed by the "abuse of discretion" standard enunciated in Hernett v. Meier, 173 N.W.2d 907 (N.D.1970). In Hernett, the issue was whether or not signatures on a referendum petition complied with a statute, § 16-01-11, NDCC. It appears that the proper standard of review was not raised as an issue.

Under the principle of separation of powers, courts do not substitute their judgment for that of an executive officer who has exercised a discretionary function. See Appeal of Johnson, 173 N.W.2d 475 (N.D.1970). That has no application, however, to ministerial acts.

In State v. Hanna, 31 N.D. 570, 154 N.W. 704 (1915), the issue raised was whether or not the secretary of state's action in filing and canvassing referendum petitions pursuant to § 25 of the Constitution 2 was discretionary, and whether or not his decision was conclusive on this court. This court found that his decision was not conclusive and, in holding that the duties fixed by § 25 are ministerial, said:

"That a question of law may arise, as here, upon the sufficiency of the petition vests no discretion in said official in acting under it." 154 N.W. at 705.

There is authority for the proposition that the placing of a proposal on the ballot by the secretary of state is a ministerial, not a quasi-judicial, act. State ex rel. Williams v. Brown, 52 Ohio St.2d 13, 6 Ohio Cas.3d 79, 368 N.E.2d 838 (1977). See also, 42 Am.Jur.2d, Initiative and Referendum, § 47.

We are not bound by the secretary of state's interpretation of the Constitution, and the "abuse of discretion" standard has no application here.

It has been suggested that, in effect, Meier's determination is a proceeding against the petition and thus the "burden of proof" is upon him pursuant to the provision in Section 6 of Article 105, which states: "If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it." We do not agree that there is a burden of proof upon anyone in this case where the principal question is entirely one of law, and to the extent that there are disputes as to the facts, they are not material to our determination.

Canons of Constitutional Construction

Principles of construction applicable to statutes are generally available to construction of the Constitution. The court must give effect and meaning to every provision and reconcile, if possible, apparently inconsistent provisions. State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977). It is the duty of the court to discover and give effect to the intention of the people without doing violence to the words employed. State v. Amerada Petroleum Corp., 78 N.D. 247, 49 N.W.2d 14 (1951). All rules of construction are subservient to this duty to ascertain and give effect to the intent and purpose of the framers and the people who adopted the Constitution. Newman v. Hjelle,133 N.W.2d 549 (N.D.1965). Expediency has no application nor does public clamor, majority desire, or apparent need. State v. Olson, 44 N.D. 614, 176 N.W. 528, 534 (1920).

Historical Background

Originally, neither § 25 nor § 202 reserved to the people any power to initiate or refer legislative measures or to initiate constitutional amendments. In 1914 amendments were made to both of these sections so that these powers were acquired by the people (Article 15, Nov. 3, 1914, S.L.1911, Ch. 93, S.L.1913, Ch. 101; Article 16, Nov. 3, 1914, S.L.1911, Ch. 89, S.L.1913, Ch. 98). 3 The amendment of § 202 to provide a means for the people to initiate amendments to the Constitution was challenged in State v. Hall, 44 N.D. 459, 171 N.W. 213 (1919), 4 although the court stated that its remarks applied equally to § 25 on initiative and referendum powers. This court prefaced its decision by calling attention to the provisions of § 2 of the North Dakota Constitution, which says:

"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."

Justice Grace, writing for the majority, said:

"The words of section 2 have the deepest significance; the words have such a profound meaning, and are such a lucid revealment of the place where political power is lodged for the benefit of the people, as should make a vivid impression on the minds of all. Each generation of people inherit this great and far-reaching political power from the preceding generation. As an inheriting generation, it is part of their birthright to receive such power; to protect it with all their intelligence; to preserve it; to enjoy it, and hand it down to the future generation, to posterity, unimpaired. In this connection it would be well for all who, for a time, are invested with authority and commissioned by the will of the people to exercise for the people and for their benefit some of the inherent power of the people, to comprehend that all such persons, so briefly commissioned with such authority, are but the agents and instrumentalities selected by the people to perform certain duties for the people. In this sense, Governors of states, Legislatures, and courts, and each and every other person engaged in performing a public duty prescribed by the people, is, at all times, the agent only of the people, to exercise for the people such delegated political power as the people, in their sovereign capacity, may determine shall be exercised by such agents or any of them. All political power being in the people, they may delegate...

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