Schumacher v. Byrne
| Decision Date | 22 July 1931 |
| Docket Number | No. 5964.,5964. |
| Citation | 61 N.D. 220,237 N.W. 741 |
| Parties | SCHUMACHER et al. v. BYRNE. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Section 25 of the State Constitution, as amended, is declared to and therefore legislation affecting these reserved rights, among which is the right of referendum, must be construed, if possible, to facilitate the use of such right and not to hamper it.
Syllabus by the Court.
Such section of the Constitution prescribes no set form for a referendum petition, but does provide for a petition to be signed by at least seven thousand electors and that such petition shall have printed thereon a ballot title which shall fairly represent the subject matter of the measure.
Syllabus by the Court.
Following Wood et al. v. Byrne, etc. (N. D.) 232 N. W. 303, it is held that the legislative intent in adopting chapter 135, Session Laws of 1925, being sections 1104a1 and 1104a2 of the Supp., was to regulate and facilitate the circulation of such petition so as to aid the secretary of state to “pass upon each petition” as required by the provisions of the Constitution, and such legislation “must be liberally construed so as to effect this purpose.” This provision of the statute, “Each signer shall add his residence, post-office address, and date of signing,” is intended by the Legislature to aid the secretary of state in determining whether the signer possessed the necessary qualifications for petition, and where such residence, post office address, and date of signing are given correctly, it is a sufficient compliance with the statute if the same are written by the petitioner himself, or by some other person at his direction and at the time of signing so that the whole proceedings constitute but one act.
Syllabus by the Court.
The proposed ballot title set forth in the petition is examined, and held to show sufficient compliance with the requirements of the statute.
Syllabus by the Court.
The “ballot title” and the “statement” of the question to be voted upon are separate and distinct matters, and the latter is prepared under the direction of the secretary of state.
Syllabus by the Court.
Where petitioners attempt to suspend the will of the people as expressed by the legislative assembly, its agent, they are bound by the provisions of this section of the Constitution, and these provisions are mandatory; but where they describe the measure to be referred by the title attached thereto by the legislative assembly and state their desire to have such law referred to the people for their approval or rejection, and style the petition a referendum petition, the fact that in the body of the petition they use the expression “Be it enacted by the People of the State of North Dakota” does not vitiate the petition. The petition is examined, and it is held, that it clearly shows the same to be a referendum petition, and it was so considered by the secretary of state.
Syllabus by the Court.
It is not the province of the petitioners to direct the secretary of state how the question involved shall be stated upon the ballot; but it is the duty of the secretary of state to so state the question that the electorate may vote “yes” if it desires to approve the act of the legislature, or “no” if it disapproves it.
Syllabus by the Court.
The record is examined, and it is held, that the referendum petition is not rendered insufficient by the defects claimed to exist therein, that the decision of the secretary of state holding said petition to be insufficient is incorrect, and therefore the petition should be accepted and filed conformably to law.
Original application by H. C. Schumacher and others for a writ of mandamus to be directed to Robert J. Byrne, as Secretary of State, requiring him to accept and file a referendum petition.
Order in accordance with opinion.
Lemke & Weaver and Francis Murphy, all of Fargo, for petitioners.
James Morris, Atty. Gen., and Charles Simon, Asst. Atty. Gen., for respondent.
Lawrence, Murphy, Fuller & Powers, of Fargo, for interveners.
On June 2, 1931, the petitioners delivered to the secretary of state a large number of instruments united to form a general petition as follows:
“Referendum Petition
For a Referendum of Senate Bill No. 100.
Be it enacted by the People of the State of North Dakota:
That Senate Bill No. 100, ‘For an Act to Amend and reenact Sections 2, 3, and 5 of Chapter 166, Session Laws of North Dakota for the year 1929, and providing for a tax of four cents per gallon upon motor vehicle fuels, and further providing for the distribution of the revenue derived from said tax,’ and passed by the 22nd Legislative Assemblyat its regular session in 1931, be and the same is hereby repealed and disapproved.
+-------+
¦Yes¦[ ]¦
+---+---¦
¦No ¦[ ]¦
+-------+
We, the undersigned, consisting of over 7000 of the qualified electors at large, of the State of North Dakota, hereby propose that the above measure ‘For a referendum of Senate Bill No. 100,’ be submitted to the qualified electors of the state, for their approval or rejection, and we hereby request the Secretary of State of North Dakota to submit the above measure to the voters of the state at the next presidential primary election to be held on the third Tuesday in March, 1932.
who shall constitute the committee for Petitioners and who shall represent and act for petitioners.”
The petition was signed by approximately nine thousand electors of the state and tendered within the time prescribed by the provisions of section 25 of the state Constitution as amended. The secretary of state received the petition, made an examination of the same, and on June 18, 1931, in accordance with the requirements of said section 25 of the Constitution, which says, “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,” notified the chairman of the committee as follows:
Committee for Petitioners, Referendum S. B. 100.
Fargo, North Dakota.
Dear Sir: Attention: Mr. H. C. Schumacher, Chairman.
You are hereby notified that the petition for a referendum of S. B. 100, passed by the Twenty-second Legislative Assembly, relating to 4 cent motor vehicle fuel tax and distribution of revenue derived therefrom-filed with this office on June 2nd-does not meet the requirements of article 26, Amendments to N. D. Constitution and chap. 135, S. L. 1925, and is found insufficient for submission to the voters at the next presidential primary to be held on the third Tuesday in March, 1932.
A careful check of the various separate copies making up this petition shows same to have been signed by 9277 petitioners. In 2975 cases, however, it appears very clearly that the signer himself did not add the date of signing, his residence and post office address and that this information was entered in the handwriting of some person other than the signer. Deducting this amount of 2975 from 9277, the total number of signatures, leaves 6302 satisfactory and acceptable signatures, or 698 less than 7000, the number required by Article 26, Amendments to our Constitution. In this connection we wish to state for your information that in arriving at the number of defective signatures (2975) proper credit has been given for 964 instances in which the signer himself did originally enter ditto marks in place of date and residence, according to your own personal statement of a week ago. But for this the number of defective signatures would have been 3939, making a total of acceptable signatures 5338 or 1662 below the required amount.
Altho somewhat contradictory and conflicting in meaning no objection is made to the wording of the petition itself as this, in our opinion, is sufficiently expressive of the intention of the petitioners to effect a referendum of S. B. 100 passed by the Twenty-second Legislative Assembly of our state.
Very truly yours, Robert Byrne,
Secretary of State.”
The petitioners immediately applied to this court for a review of this decision of the secretary of state and for an order reversing the decision and requiring the secretary to file the petition in accordance with the provisions of the Constitution of this state and to place the same upon the ballot as required by law.
Upon this Walter R. Reed, John C. Hart, and Mrs. Walter C. Taylor applied to this court for leave to intervene, claiming to be electors and taxpayers of the state and beneficially interested in the result of these proceedings. This application was accompanied by a proposed “answer to petition for review and cross-petition for review,” wherein these taxpayers allege not only that the secretary of state was justified in rejecting the petition on the grounds set forth in his notice to the “committee for the petitioners,” but also allege that the “purported referendum petition does not contain or have annexed thereto the...
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