Pelkey v. City of Fargo, 890345

• Decision Date: 27 March 1990
• Docket Number: No. 890345,890345
• Citation: 453 N.W.2d 801
• Parties: John L. PELKEY, Jr., Steven P. Linke, and Edward R. Christianson, Plaintiffs and Appellants, v. CITY OF FARGO and Carol Kraft, in her capacity as Assistant City Auditor for the City of Fargo, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 801

453 N.W.2d 801

John L. PELKEY, Jr., Steven P. Linke, and Edward R Christianson, Plaintiffs and Appellants, v. CITY OF FARGO and Carol Kraft, in her capacity as Assistant City Auditor for the City of Fargo, Defendants and Appellees.

Civ. No. 890345.

Supreme Court of North Dakota.

March 27, 1990.

William Kirschner & Associates, Fargo, for plaintiffs and appellants; argued by Thomas A. Dickson, of Lundberg, Nodland, Schulz, Lervick, Tharaldson & Dickson, P.C., Bismarck, on behalf of William Kirschner.

Wayne O. Solberg (argued), Fargo, for defendants and appellees.

ERICKSTAD, Chief Justice.

John L. Pelkey, Jr., Steven P. Linke, and Edward R. Christianson appeal from a district court judgment denying their application for a writ of mandamus. We affirm.

The City of Fargo is a municipal corporation operating under a home rule charter. On December 6, 1988, the voters approved an amendment to the charter authorizing a one-half percent sales and use tax to construct and operate a multi-purpose dome facility. On January 16, 1989, Ordinance No. 2430 was adopted, enacting Article 3-15, of the Fargo Municipal Code, imposing the sales and use tax as authorized by the amended charter.

During August 1989, the petitioners submitted a proposal to repeal the charter authorization for the dome sales and use tax. The Board of City Commissioners refused to submit the proposal to a vote of the electorate. The petitioners then requested the district court to issue a writ of mandamus to compel the City Commission and the City Auditor to submit the repeal proposal to a vote. The district court denied the petitioner's request, concluding that because the people had voted on this issue within the past two years, another vote was currently barred by Section 40-05.1-09, N.D.C.C., which provides:

"Restriction on proposals to amend or repeal. Any proposal to amend or repeal home rule charters shall not be submitted to the electorate more often than every two years."

On appeal from the district court's denial of their request for a writ of mandamus, the petitioners assert that Section 40-05.1-09, N.D.C.C., is an unconstitutional restriction on the people's reserved power to initiate legislation under Article III, Sec. 1, of the North Dakota Constitution.

We must first address the City of Fargo's motion to dismiss the appeal for mootness. In December 1989, bonds were sold for construction of the dome facility. The City of Fargo asserts that because those bonds have been issued, the charter and the ordinance establishing the sales and use tax are irrepealable until the bond debt has been paid, in accordance with Article X, Sec. 16, of the North Dakota Constitution:

"Section 16. Any city, county, township, town, school district or any other political subdivision incurring indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof when due, and all laws or ordinances providing for the payment of the interest or principal of any debt shall be irrepealable until such debt be paid." [Emphasis added.]

The bonds were issued pursuant to a resolution adopted by the governing body of the City of Fargo on December 4, 1989. In that resolution the City of Fargo, as the bond issuer, pledged the proceeds from the sales and use tax for payment of the principal and interest on the bonds. Incorporated within the bond documents is a statement that the bonds, and interest thereon, are payable from a fund solely funded from the proceeds of the sales and use tax. Article X, Sec. 16, N.D. Const., unambiguously makes laws and ordinances, which provide for the payment of interest and principal of indebtedness incurred by a city, irrepealable until the debt is paid. Their irrepealability is not contingent upon spending the proceeds of a bond issue, but merely upon "incurring indebtedness." The City of Fargo incurred a debt when it issued the bonds. Consequently, we agree with the City of Fargo that because the bonds for construction of the dome have been issued the charter provision and implementing ordinance imposing the sales and use tax are irrepealable until the bonds have been paid.

Generally, an appeal will be dismissed if the issues therein become moot or academic, leaving no actual controversy to be determined. Peoples State Bank v. State Bank of Towner, 258 N.W.2d 144 (N.D.1977). An appeal becomes moot when, due to the lapse of time or the occurrence of events prior to the appellate court's determination, the appellate court is unable to render effective relief. St. Onge v. Elkin, 376 N.W.2d 41 (N.D.1985). However, we will not dismiss an appeal as moot where the matter in controversy is of such great public interest and the merits of the controversy so unsettled that public policy demands a determination of the issue. St. Onge, supra. In Forum Publishing Company v. City of Fargo, 391 N.W.2d 169, 170 (N.D.1986), we reiterated the definition of "public interest:"

"We understand 'public interest' to mean more than mere curiosity; it means something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as the interest of the particular localities which may be affected by the matter in question."

The overriding issue in this case is whether the legislature is prohibited by our state constitution from enacting laws which impose restrictions or limitations on the people's right to initiate changes to a city charter. The issue raises a potential conflict between the legislature's constitutional right to provide by law for the establishment and government of all political subdivisions under Article VII, Sec. 2, N.D. Const., and the people's right to initiate and refer laws under Article III, Sec. 1, N.D. Const. We conclude that the issue raised is a matter of great public interest, and we will address it.

The power of the people to initiate and refer legislation is found under Article III, Sec. 1, N.D. Const.:

"Section 1. While the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers." [Emphasis added.]

The petitioners assert that the powers reserved to the people under Article III, Sec. 1, N.D. Const., include the power to initiate changes to a city's home rule charter, and that the legislature is therefore prohibited from enacting legislation which would restrict or impair the people's right to initiate changes to a home rule charter. More specifically, the petitioners assert that Section 40-05.1-09, N.D.C.C., which prohibits a proposal to amend or repeal a home rule charter from being submitted to the electorate more often than every two years, is an unconstitutional enactment by the legislature because it is a restriction on the people's power to initiate legislation under Article III, Sec. 1, N.D. Const.

The sole object in construing a constitutional provision is to ascertain and give effect to the intention and purpose of the framers and the people who adopted it, and such intention and purpose are to be found in and deduced from the language of the constitution itself. Dawson v. Tobin, 74 N.D. 713, 24 N.W.2d 737 (N.D.1946). In construing constitutional provisions we generally apply principles of statutory construction, giving effect and meaning to every provision and reconciling, if possible, apparently inconsistent provisions. McCarney v. Meier, 286 N.W.2d 780 (N.D.1979). Constitutional provisions must be considered as a whole and each section must be harmonized to give effect to each of its provisions whenever fairly possible. State v. Anderson, 427 N.W.2d 316 (N.D.1988), cert. denied, --- U.S. ----, 109 S.Ct. 491, 102 L.Ed.2d 528 (1988).

When we read and construe together the sections of Article III, N.D. Const., it is clear that the power reserved to the people to initiate and refer laws applies only to state...