Preckel v. Byrne, 6108.

• Citation: 62 N.D. 634,244 N.W. 781
• Decision Date: 19 October 1932
• Docket Number: No. 6108.,6108.
• Parties: PRECKEL et al. v. BYRNE, Secretary of State.
• Court: North Dakota Supreme Court

62 N.D. 634

244 N.W. 781

PRECKEL et al.

v.BYRNE, Secretary of State.

No. 6108.

Supreme Court of North Dakota.

Oct. 19, 1932.

Syllabus by the Court.

1. The secretary of state, when an initiative petition proposing a law is presented to him for filing, has the duty of passing upon such petition to ascertain whether it complies with the form required by the Constitution of this state. It is not his province to examine the substance of the proposed measure to determine its constitutionality; and this court, when called upon to review the decision of the secretary of state in respect to such petition, determines only such questions as the secretary is authorized to decide.

2. The constitutional provision that an initiative petition for the enactment of a law “shall contain the full text of the measure” is fully met when the proposed measure is complete in itself, and does not require reference to other sources for the substance of the proposed law. That it may be necessary to refer to existing legislation or to other sources of information for the purpose of interpreting the act or applying its provisions, or that its effect may be to amend or repeal existing legislation, does not necessarily render the proposed measure defective in form.

3. Where it is sought to enjoin the secretary of state from submitting an initiative proposal to the electors of this state, this court will not examine the proposed measure to test the constitutionality of the substance of the act proposed. This method of enacting a law is part of the legislative processes of this state, and, if correct in form, the constitutionality of the measure can be determined only after its enactment and under the same conditions as an enactment of the Legislature of this state.

Proceedings by W. C. Preckel and another to review a decision of Robert Byrne, as Secretary of State, in the matter of an initiative petition proposing the submission of a law to the electors of the state.

Decision in accordance with opinion.

Scott Cameron, of Bismarck, for petitioners.

James Morris, Atty. Gen., Charles Simon, Asst. Atty. Gen., and B. F. Spalding and A. W. Cupler, Sp. Asst. Attys. Gen., for respondent.

BURR, J.

In August, 1932, there was filed with the respondent an initiative petition proposing a measure to be submitted to the electors at the coming election fixing the salaries of certain state officers and employees. The secretary of state decided such petition was sufficient and entitled to a place on the ballot.

The petitioners ask a review of this decision and allege they “are residents, electors, and taxpayers of the state of North Dakota; that petitioner Preckel is one of the commissioners of the workmen's compensation bureau and his salary is fixed by law”; and petitioner Van Neste is an employee in the highway department of this state “whose salary and compensation is not fixed by law.”

They state further that the secretary of state, unless prohibited by this court, will submit this proposal to the voters of this state for their decision. Hence they ask the said officer be prohibited from placing the same upon the ballot.

The title of the proposed measure reads as follows: “An Act reducing and fixing the salaries or compensation of the Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Superintendent of Public Instruction, Commissioner of Insurance, Commissioner of Agriculture and Labor, and each Commissioner of Railroads, to be elected at the general election to be held November 8, 1932, and all subsequent elections, and reducing and fixing the salaries or compensation of all appointive state officials and members of all appointive state boards, bureaus, and commissions provided for by law and reducing and fixing the salaries or compensation of all deputies, assistants, secretaries, clerks and employees of all state officials, state boards, bureaus and commissions, defining the persons and classes of persons whose salaries are reduced or fixed, specifying the time when this act shall take effect, and repealing all acts or parts of acts insofar as they conflict herewith”; and contains seven sections.

Section 1 specifically names certain state officers, and sets forth the annual salary to be paid each. No special attack is made upon the initiative petition so far as the provisions of this section are concerned.

Section 2 of the measure is as follows: “The salaries or compensation of all appointive state officials, including members of all appointive state boards, bureaus, and commissions, now provided for by law, and the salaries or compensation of all deputies, assistants, secretaries, clerks and employees of all state officials, state boards, bureaus, and commissions are hereby reduced and fixed as follows: The salaries or compensation of all persons mentioned in this section, which are now fixed by law, are hereby reduced and fixed at an amount equaling eighty per cent of the amount at which the salaries of such persons were paid or fixed as of the month of January, 1932, whether such salaries or compensation are fixed or computed on an annual, monthly, or per diem basis; the salaries or compensation of all persons mentioned in this section which are not fixed by law shall in no event hereafter exceed an amount equaling eighty per cent of the amount at which such salaries not fixed by law were paid or computed as of the month of January, 1932; whether such salaries or compensation are fixed or computed on an annual, monthly, or per diem basis, and until otherwise changed by the proper authority such salaries are hereby fixed at eighty per cent of the amount computed or paid as of the month of January, 1932; provided, that the salary or compensation of no deputy, assistant, secretary, clerk, or employee shall exceed the salary or compensation of the state officer or member of the state board, bureau, or commission by or under whom such deputy, assistant, secretary, clerk, or employee is employed or acts; and provided further that nothing in this Act contained shall be construed as prohibiting, or preventing the legislature from abolishing or consolidating any or all Offices, Bureaus, Boards or Commissions now provided for by law or from eliminating the provision of any law fixing the amount of salary or compensation of any official, member of any Board, Bureau or Commission, or any deputy, assistant, secretary, clerk or employee, or from reducing below the amounts provided by this Act the salary or compensation of any person or persons.”

Section 3 of the proposed measure is as follows: “The terms elected and elective state officials shall include all state officials specified in Section 1 hereof. The terms appointed or appointive state officials and members of appointive state boards, bureaus, and commissions, and the terms deputies, assistants, secretaries, clerks and employees shall include all such persons whose office or employment is held by virtue of any appointment or employment however made, other than an election by the voters of the state, whether or not such office or employment is created by an act of the Legislature.”

The petitioners allege that such “initiative petition” is void and insufficient in the following particulars, and for the following reasons:

“1st. That the said petition does not contain the full text of the measure proposed, as required by article 26 of the Amendments to the Constitution, in that it attempts to amend the laws of this State fixing the salaries of appointive state officers and members of state boards and commissions without setting out either the law to be amended for (or) the law as it would read when amended; and wholly fails to designate what laws or sections of laws are referred to, and is an attempt to amend the same by indirect reference.

2nd. That said petition is insufficient and improper in form in that it wholly fails to comply with Section 64 of article 2 of the Constitution of the State of North Dakota in that said proposed initiative law, being in fact an amendment, for the reason that said act is not complete in itself, fails to set out, re-enact, and publish at length the laws that are being amended thereby. It fails to amend by any appropriate language, and that the method of amending by providing a per centum change in the numbers and amounts used in the laws indicating the salaries of officers and state employees is in direct violation of said section 64 of the Constitution.

3rd. That said petition is insufficient in form in that it fails to comply with section 61 of the Constitution, in that said petition and the proposed initiated measure disclosed on its face that it embraces more than one subject, in that it purports to reduce and fix salaries of state officers whose salary is fixed by statute and attempts to fix the compensation of the employees of the state whose compensation is not fixed by law, and it attempts to fix the salaries of employees in the various state institutions, which said employees are not classified or designated by any title, rank, or other designation.

4th. That said petition is insufficient and defective in form in that it discloses on its face that if the said measure became a law it would be in direct violation of section 11 of article 1 of the Constitution, in that the same refers to persons and attempts to fix the salary and compensation only of persons who are state employees in the month of January, 1932.

5th. The said Petition is insufficient in form for the reason that the same fails to comply with section 1104a1...