State ex rel. Byerley v. State Board of Canvassers
| Decision Date | 31 January 1919 |
| Court | North Dakota Supreme Court |
Application for and original writ of certiorari.
Denied.
Application denied and the proceedings dismissed.
W. H Stutsman, for relators.
"A majority of all the legal votes cast means a majority of all votes whether they voted for the amendments or not." Const. subd. 2, § 202; State v. Babcock (Neb.) 22 N.W. 372; State v. Anderson, 42 N.W. 421; Tecumseh Nat. Bank v. Saunders (Neb.) 71 N.W. 779.
It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters of the county. People ex rel. Davenport v. Brown, 11 Ill 479; People v. Wiant, 48 Ill. 263; Chestnutwood v. Hood, 68 Ill. 132; 15 Cyc. 390; State ex rel. v. Foraker, 46 Ohio St. 677, 6 L.R.A. 422, 23 N.E. 491; Re Denny, 156 Ind. 104, 51 L.R.A. 722, 59 N.E. 359; State v. Lancaster, 9 Neb. 474; State v. Swift, 69 Ind. 505; Enyart v. Trustees, 25 Ohio St. 618; State v. Bechel (Neb.) 34 N.W. 342.
William Langer, Attorney General, Edw. B. Cos, Assistant Attorney General, and Albert E. Sheets, Jr., Assistant Attorney General, for respondents.
"If the meaning of such provision is clear and unambiguous, legislative construction thereof is entitled to no weight; but if the meaning is doubtful, a practical construction thereof by the legislature will be followed by the courts if it can be done without using violence to the fair meaning of the words used in order to sustain the constitutionality of a statute." 8 Cyc. 737; State v. Blaisdell, 18 N.D. 31.
"The general policy of the American people is to test the sufficiency of any vote by vote on a particular question; and not by a vote on some other question." State v. Langley, 5 N.D. 594.
"A majority of all votes cast means all the votes cast for or against that particular proposition." V. T. Loan & T. Co. v. Whitehead, 2 N.D. 82, 49 N.W. 318; State v. Moorhouse, 5 N.D. 406, 67 N.W. 140; Hanson v. Deering, 7 N.D. 288, 75 N.W. 249; Lawrence Co. v. Mead Co. 6 S.D. 528, 62 N.W. 131; United States v. Sanders, 22 Wall. 492; Oakland v. County, 118 Cal. 160, 50 P. 227; State v. Smilie, 65 Kan. 240, 69 P. 199; Gillispie v. Palmer, 20 Wis. 544; State v. Barnes, 3 N.D. 319, 55 N.W. 883; State v. Langley, 5 N.D. 594, 32 L.R.A. 723, 67 N.W. 958; State v. Porter, 11 N.D. 309, 91 N.W. 944; State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 360.
When a constitutional provision is taken by one state from the Constitution of another, the interpretations which have been placed thereon are also taken with it. Jasper v. Hasen, 4 N.D. 1, 58 N.W. 454, 23 L.R.A. 58; Stafford v. Company, 2 N.D. 6, 48 N.W. 434; Peo v. Ritchie, 12 Utah 193, 42 P. 209; White v. Chicago R. Co. 5 N.D. 308, 41 N.W. 730; Bank v. Gutterson, 15 S.D. 486, 90 N.W. 144; Cass Co. v. Imp. Co. 7 N.D. 528, 75 N.W. 755.
Subdivision 2 of § 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 at the general election. The Board of Canvassers, acting under the authority of § 1025, Comp. Laws 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 § 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, post, 459, 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 (), 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.
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 office holder, 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 concerning direct legislation, the analogy of the relations between the judiciary and the legislative assembly be strictly and logically followed, it would result that every ministerial officer intrusted with a power necessary to facilitate the operation of the plan would be as free from judicial interference as would be the speaker or the chief clerk of the house of representatives or...
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