State ex rel. Byerley v. State Bd. of Canvassers

• Decision Date: 25 March 1919
• Citation: 44 N.D. 126,172 N.W. 80
• Parties: STATE ex rel. BYERLEY et al. v. STATE BOARD OF CANVASSERS et al.
• Court: North Dakota Supreme Court

44 N.D. 126

172 N.W. 80

STATE ex rel.BYERLEY et al.

v.STATE BOARD OF CANVASSERS et al.

Supreme Court of North Dakota.

Jan. 31, 1919.

Dissenting Opinion, March 25, 1919.

Syllabus by the Court.

Where an application is made for the prerogative writ of this court upon the relation of private individuals as taxpayers and electors, without first securing the consent of the Attorney General or his refusal to maintain the action in behalf of the state and its interests, and where the matter concerns only the state, its sovereignty, its franchises, or prerogatives, or the liberties of its people, no right of the relators or of any citizen of the state being immediately threatened with invasion or abrogation, this court will refuse to take jurisdiction.

A proceeding for the amendment of the Constitution initiated by the people, in the exercise of their sovereign power under the provisions of the initiative and referendum (article 16), is the exercise of a political power, legislative in its character, and the agencies and instrumentalities designated for securing the expression of the sovereign will exercise a political function.

The State Board of Canvassers, in determining and certifying to the vote of the people given upon a proposed amendment to the Constitution initiated by the people under the provisions of the initiative and referendum (article 16), exercise a political function legislative in its character.

Where the State Board of Canvassers have not refused to canvass the returns upon an initiated proposed amendment to the Constitution, and where it is sought to exercise the judicial power to compel such board to canvass such returns in a particular manner upon the ground that their action taken is unwarranted in law, this court has no jurisdiction to interfere; the action of such board being political in its character.

Where the legislative expression and enactment and the judicial construction had concerning the meaning of a particular phrase, “a majority of all the legal votes cast,” has been consistently followed and adopted in this state ever since statehood, and has been repeatedly followed by decisions of this court, thus establishing a rule of construction affecting personal and property rights, the rule of stare decisis obtains.

Held, following State v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and other cases:

(a) That a “vote” is the registration in accordance with law of the preference or choice of an elector on a given subject.

(b) That “votes cast” are the totals of the separate votes or expressions of voters' preferences for or against a proposed amendment to the Constitution.

Held, following State v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and other cases, that the phrase, “a majority of all the legal votes cast at such general election,” contained in subdivision 2 of article 16 of the amendments to the Constitution, means a majority of the votes cast upon the particular amendment submitted to the electors.

Held, further following State v. Blaisdell, supra, and other cases, that the determination and certificate of the State Board of Canvassers, stating that the amendments initiated by the people and submitted to the electors at the last general election in November, 1918, were adopted by having received, each of them, an affirmative vote equal to a majority of the votes cast on each amendment respectively, was proper and correct.

Application by the State, on relation of W. E. Byerley and Theodore G. Nelson, for an original writ of certiorari to the State Board of Canvassers, Thomas Hall, Secretary of State, and other state officers. Writ denied.

Christianson, C. J., dissenting.

W. H. Stutsman, of Mandan, for relators.

William Langer, Atty. Gen., and Albert E. Sheets, Jr., Asst. Atty. Gen., for respondents.

BIRDZELL, J.

Subdivision 2 of section 202 of the Constitution of North Dakota provides for amending the Constitution by the process known as the initiative. At the last general election certain amendments, for which petitions had been previously circulated, were referred to the electors of the state in accordance with the provisions of this section. At the election some of the amendments, though receiving a clear majority of all the votes cast for and against, them, did not receive the affirmative votes of a majority of all the electors participating in the general election. The Board of Canvassers, acting under the authority of section 1025, C. L. 1913, canvassed the votes cast, and determined the result by certifying the number of votes cast for and against each amendment separately, and, by the majority of the board, by certifying that the amendments had been carried and adopted by the voters. The relators in this action apply for a writ of certiorari directed to the defendants the Board of Canvassers requiring the certification of the record to this court, to the end that we may review its action in making the determination above referred to, and, if the court should be so advised, vacate and annul the proceedings claimed to be in excess of the jurisdiction of the board. The petitioners, two in number, allege that they are citizens and taxpayers of the state; that they are beneficially interested in this proceeding and in the relief demanded. No facts are alleged, however, showing any interest in them that is not common to every other citizen and taxpayer in the state. Upon the filing of the petition an order to show cause was issued, directing the defendants to show cause why the writ of certiorari should not issue as prayed for; the question of jurisdiction being expressly reserved. Upon the return day the Attorney General appeared on behalf of the respondents and moved to dismiss the proceeding for lack of jurisdiction. A return was also made, and the issues raised by both the motion and the return were presented in order that the court might determine such questions in relation to the matter as, upon consideration, it might deem to be properly before it.

Under the provisions of section 202 of the Constitution, amendments proposed by initiative petition are required to be referred to the people at the succeeding general election, and it is provided that-

“Should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such general election, such amendment or amendments shall be referred to the next Legislative Assembly; and should such proposed amendment or amendments be agreed upon by a majority of all the members elected to each house, such amendment or amendments shall become a part of the Constitution of this state.”

Further provision is made for a second reference to the people at the succeeding general election if the amendment or amendments do not receive the approval of the Legislative Assembly. In the instant case we are not concerned with the sufficiency of the original petitions, nor is any question raised involving the proceedings had prior to the certification by the canvassing board. In a prior proceeding in this court it was held to be the duty of the Secretary of State to submit the proposed amendments to the people at the last election. State ex rel. Twichell v. Hall, File No. 3647, 171 N. W. 213. We are now asked to interfere in the midst of the proceedings looking toward the ultimate amendment of the Constitution, for the purpose of determining the legality of one of the intermediate steps. In the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281 (the capital removal case), this court held that it had ample jurisdiction to intercept a proposed amendment to the Constitution at its initial stage, on the ground of the nonexistence 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 petition had been filed against existing legislation, which, if filed, would have had the effect of suspending the operation of the particular law. In the former of these two cases it will be noted that jurisdiction was entertained for the purpose of preventing a ministerial officer from taking a step that was conceived to be wholly without warrant of law, and in the second case it was entertained to compel compliance with an existing law as to which, it was contended, no valid proceedings suspending the law had been had. These cases are not authority for the proposition that the court should interfere at the instance of the citizen wherever it is thought that, in the process of amending, a step has been taken which is not in strict conformity with the requirements of the Constitution. The exercise of jurisdiction upon a ground as broad as this would be subversive of the American constitutional theory of government through co-ordinate branches.

[1][2][3][4] It is not contended that the court would have authority to interfere with the process of legislation as such. In fact, it is conceded that a legislative body, whether of the state or of a minor municipality, must be left free to make its own mistakes, and that it cannot be judicially interfered with during the process. With the advent of the initiative and referendum, situations frequently arise where the principle of noninterference would seem to be applicable by analogy to the action of the voters. The conclusion that it is so applicable, however, is hardly warranted in the light of the inherent nature of our government. In a democratic republic the law is exalted. It is above the individual, and it is above the officeholder, however important his office may be. In order to vindicate its mandates, it is sometimes necessary to resort to compulsion and restraint through judicial processes directed to those occupying responsible executive positions-even to the Governor himself. If, in matters...