State ex rel. Baker v. Hanna

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtGOSS
Citation31 N.D. 570,154 N.W. 704
Decision Date08 October 1915
PartiesSTATE ex rel. BAKER v. HANNA, Governor, et al.

31 N.D. 570
154 N.W. 704

STATE ex rel.
BAKER
v.
HANNA, Governor, et al.

Supreme Court of North Dakota.

Oct. 8, 1915.


[154 N.W. 704]


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.

[154 N.W. 705]

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.


GOSS, J.

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...

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10 practice notes
  • 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
    • United States State Supreme Court of North Dakota
    • 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
    • United States State Supreme Court of North Dakota
    • September 11, 1916
    ...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 as expressed b......
  • Stenehjem ex rel. State v. Nat'l Audubon Soc'y, Inc., No. 20130279.
    • United States
    • United States State Supreme Court of North Dakota
    • May 5, 2014
    ...Gonzalez v. Tounjian, 2003 ND 121, ¶ 20, 665 N.W.2d 705. “To each petitioner knowledge of the law must be presumed.” State v. Hanna, 31 N.D. 570, 154 N.W. 704, 707 (1915); see also Paulson v. Ward Cnty., 23 N.D. 601, 137 N.W. 486, 487 (1912) (“With knowledge of the law thus imputed and conc......
  • Request a trial to view additional results
10 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
    • United States State Supreme Court of North Dakota
    • 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
    • United States State Supreme Court of North Dakota
    • September 11, 1916
    ...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 as expressed b......
  • Stenehjem ex rel. State v. Nat'l Audubon Soc'y, Inc., No. 20130279.
    • United States
    • United States State Supreme Court of North Dakota
    • May 5, 2014
    ...Gonzalez v. Tounjian, 2003 ND 121, ¶ 20, 665 N.W.2d 705. “To each petitioner knowledge of the law must be presumed.” State v. Hanna, 31 N.D. 570, 154 N.W. 704, 707 (1915); see also Paulson v. Ward Cnty., 23 N.D. 601, 137 N.W. 486, 487 (1912) (“With knowledge of the law thus imputed and conc......
  • Request a trial to view additional results

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