State ex rel. Baker v. Hanna

Decision Date08 October 1915
Citation31 N.D. 570,154 N.W. 704
PartiesSTATE ex rel. BAKER v. HANNA, Governor, et al.
CourtNorth Dakota Supreme Court
Syllabus by the Court.

Application for original writ of mandamus against the individual members of the state board of immigration to compel organization of said board and performance by it of its duties under chapter 234, S. L. 1915, creating said board and defining its duties. The respondents by answer state their willingness to organize and act as a board, provided section 7, c. 234, S. L. 1915, is in force. But respondents recite the filing in the office of secretary of state of certain petitions, one set for a referendum of the entire act, and one for referendum of section 7 thereof, the appropriation part of said statute, and that, while neither petition, taken alone, has enough signatures thereon to authorize a referendum vote, yet if the both sets should be considered as but one petition and as sufficient to referend section 7, the appropriation part of said act, then said section 7, the appropriation, would be suspended, pending a vote thereon at the next general election, and meanwhile, the board being entirely without funds, it would be useless to organize, as well as powerless to act. Held, to authorize the two petitions to be treated as one, both must deal with the same subject-matter and seek the same object.

An affirmative vote on the petition to referend the entire act would revoke the repealing section of chapter 234, S. L. 1915, expressly repealing earlier statutes, and thereby reinstate the old statutes, making a standing biennial appropriation of $10,000 for immigration purposes and a different board of immigration, while an affirmative vote upon reference of section 7 only of chapter 234 would leave the present board intact, but with no appropriation or funds for its use. Hence the two petitions are entirely dissimilar in objects sought, as they are in subject-matter. They are separate petitions, and cannot be treated as one only for the referending of section 7 alone.

That the petitioners to referend the entire act have assigned in their petition as a reason for its reference that it entails “a needless waste of public money,” and “is a needless burden of taxation with no benefit to the people of the state,” does not authorize it to be treated as a petition for reference of section 7, the appropriation only, as petitioners for reference of the entire act must be held to have understood the law, and that in effect they petitioned for a reinstatement of the old biennial appropriation for $10,000, while those petitioning for only reference of the appropriation, section 7, desire no appropriation whatever. Under no reasoning can the two classes of petitioners be said to either desire or seek the same result. The two petitions must be held to be conflicting and incompatible, and cannot be consolidated as one petition.

Petitions cannot be combined when to do so will override or ignore the desires of one set of petitioners as expressed in their petition.

As a referendum sets aside or suspends the will of the people as expressed by legislative act, petitions for a referendum should be required to comply strictly with the mandatory constitutional provisions under which a referendum is authorized. To require less is the equivalent of amending said constitutional provisions by court fiat, as well as to be derelict in enforcing the Constitution itself.

Chapter 234 is in full force and effect, and no part thereof has been referred. The referendums attempted of the act and section 7 thereof have both failed.

Writ ordered issued, but no costs will be taxed, as the public officials concerned were justified in obtaining a judicial determination of the questions involved, before disbursing public funds with any doubt of their right to do so.

Mandamus by the State, on the relation of Isaac P. Baker, against L. B. Hanna, as Governor of the State of North Dakota, and others. Ordered that writ issue.

Benton Baker, of Bismarck, for petitioner, Wm. Lemke, of Fargo, and Frank O. Hellstrom, of Bismarck, for respondent Hall. Henry J. Linde, Atty. Gen., for other respondents.


Based upon affidavits of petitioner as a taxpayer an alternative original writ of mandamus was issued by this court, directed to the Governor, commissioner of agriculture and labor, secretary of state, Attorney General, and president of the state railroad commission, to individually and collectively, and as the state board of immigration, show cause why they should not meet and organize as said state board of immigration, and why said board should not proceed to perform its duties pursuant to chapter 234, Session Laws 1915. To this writ two separate returns have been filed. To both petitioner demurred.

Respondents by return allege that by the filing of petitions for referendum in the office of the Secretary of State, the appropriations made in section 7, c. 234, Session Laws 1915, have been suspended and referred to a vote of the people at the next general election, as provided by section 25, art. 2, of our state Constitution as amended, and that organization of the board is a useless formality, where the appropriation part of the bill is thus suspended. The board is without funds even to pay expenses of organization if section 7 has been referred. Respondents are willing to act if it has not. All facts are stipulated. Only three questions are raised: First, is the return of the secretary of state that section 7 of the act has been referred conclusive upon the court in this proceeding? Second, is the action of the secretary of state in filing and canvassing the various referendum petitions discretionary, and if so is the discretion of that official controllable by a mandamus? And, third, do the two kinds of referendum petitions filed authorize a referendum of the appropriation contained in section 7 of the act?

The first two questions may be considered together. It is urged that his return as secretary of state that this portion of the act has been referred is as conclusive upon the courts as would be the regular return of a canvassing board upon the results of an election. The fallacy of this argument consists in the erroneous assumption that the secretary of state is required by law to make or file a return or certificate analogous thereto, passing upon the number and sufficiency of the petitioners and whether the petitions work a referendum. No certificate or return whatsoever is either called for or provided. His duties with reference to this matter are fixed by the Constitution as amended, and amount to no more than determining as a ministerial act the facts of record in his office as sufficient or insufficient upon which to authorize a referendum.

The Legislature has not provided for any official canvass by any board of canvassers or any person or official of the petitioners upon petitions for referendum that may be filed with the secretary of state. As none is provided, none is contemplated. The petitions speak for themselves. That official must cause the question to be submitted to ballot if the referendum petitions are sufficient under the law. Under constitutional provisions he must ascertain whether the petitions are sufficient in form, and, if so, whether they are signed by a sufficient percentage of the total electorate of the state to constitute a basis for a referendum vote. The mere counting of the petitioners is not analogous to a canvass of the vote of an election. It is difficult to see wherein any discretion whatsoever is vested in said official. The law declares what the petitions must contain to be valid. Like any other official acting under the law he simply obeys the law. 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. He obeys the law or he does not, according to whether his construction of the law be right or wrong. But no discretion is involved. State ex rel. v. Secretary of State of Oregon, 62 Or. 277, 125 Pac. 303; State ex rel. v. Roach, Secretary of State of Missouri, 230 Mo. 408, 130 S. W. 689, 139 Am. St. Rep. 639-both on the same question arising on referendum petitions. Where no return is to be made and no discretion vested, there can be no defense on these grounds.

[1] The issuance of the writ then turns upon the sufficiency of the petitions for referendum to operate a reference of section 7, sufficiency of which may be inquired into by mandamus. To constitute a petition with enough signers thereto concededly two entirely different petitions must be treated as but a petition for referendum of section 7. The signers of variant petitions must be counted in order to have the constitutional percentage of electors petitioning for the reference of section 7. One set of petitions reads:

We the undersigned electors of the state of North Dakota do respectfully petition you that at the next general election there be referred to the people of the state for approval or rejection by means of a vote taken at the polls an act of the Legislative Assembly of the state of North Dakota approved March 9, 1915, being an act...

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15 cases
  • State ex rel. Lofthus v. Langer
    • United States
    • North Dakota Supreme Court
    • December 6, 1919
    ...11 N. D. 309, 91 N. W. 944;State v. Liudahl, 11 N. D. 320, 91 N. W. 950;State v. Larson, 13 N. D. 420, 101 N. W. 315;State v. Hanna, 31 N. D. 570, 154 N. W. 704;State v. Packard, 32 N. D. 301, 155 N. W. 666;State v. Taylor, 33 N. D. 76, 156 N. W. 561, L. R. A. 1918B, 156, Ann. Cas. 1918A, 5......
  • State ex rel. Byerley v. State Bd. of Canvassers
    • United States
    • North Dakota Supreme Court
    • March 25, 1919
    ...of a law authorizing the filing of a petition and the submission of the proposition; and in the case of State ex rel. Baker v. Hanna, 31 N. D. 570, 154 N. W. 704, it was held that the court could properly exercise its original jurisdiction to determine whether or not a valid referendum peti......
  • State ex rel. Linde v. Hall
    • United States
    • North Dakota Supreme Court
    • September 11, 1916
    ...and holding it to be a judicial question, and in which proceedings in referendum were enjoined because void. State ex rel. v. Hanna, as Governor, et al., 31 N. D. 570, 154 N. W. 704. On original writ this court therein declared: “As a referendum sets aside or suspends the will of the people......
  • State ex rel. Linde v. Hall
    • United States
    • North Dakota Supreme Court
    • September 11, 1916
    ...constitutional provisions by court fiat, as well as to be derelict in enforcing the Constitution itself." The cases cited in State ex rel. Baker v. Hanna, supra; State ex rel. v. Olcott, 62 Ore. 277, 125 P. 303; State ex rel. Halliburton v. Roach, 230 Mo. 408, 139 Am. St. Rep. 639, 130 S.W.......
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