State ex rel. Davis v. Fabrick

• Decision Date: 14 May 1909
• Parties: STATE ex rel. DAVIS, County Judge, v. FABRICK, County Auditor.
• Court: North Dakota Supreme Court

18 N.D. 402

121 N.W. 65

STATE ex rel.

DAVIS, County Judge,

v.FABRICK, County Auditor.

Supreme Court of North Dakota.

Jan. 16, 1909.

Rehearing Denied May 14, 1909.

Syllabus by the Court.

Section 111 of the Constitution provides that county courts shall have jurisdiction of certain civil and criminal causes “whenever the voters of any county having a population of two thousand or over shall decide by a majority vote that they desire the jurisdiction of that court increased.” Held, that the words “majority vote” mean a majority of all votes cast on the question of increased jurisdiction, and not a majority of all the votes cast at the election.

Chapter 68, p. 81, Laws 1899, section 6615, Rev. Codes 1899, and chapter 78, p. 160, Laws 1905, construed, and held to limit the maximum salary of county judges in counties having increased jurisdiction to the sum of $2,500.

Appeal from District Court, Ward County; Goss, J.

Mandamus by the State, on the relation of Nehemiah Davis, as County Judge of Ward County, against J. W. Fabrick, as Auditor of that county. Judgment for defendant, and relator appeals. Affirmed.John E. Greene, for appellant. George A. McGee, State's Atty., and Francis J. Murphy, for respondent.

MORGAN, C. J.

The relator seeks to compel the respondent, the county auditor of Ward county, by a writ of mandamus, to issue to him a warrant for salary as county judge of said county. He was elected to that office in 1904, and has held the same by successive elections ever since. He claims that there is due him the sum of $3,800, over and above all sums that have been paid to him for salary. He claims that said sum is due him by reason of the alleged fact that the county court of Ward county is one having jurisdiction of certain civil and criminal causes by virtue of an election in said county whereby such increased jurisdiction was granted to that court. The district court refused to grant the writ and dismissed the proceeding. In this court the respondent advances two objections to the granting of the relator's contention, which are as follows: (1) That the county court of Ward county is not a court having jurisdiction over any matters save probate and guardianship matters. (2) That the relator has been paid all sums due him as such county judge, conceding that increased jurisdiction has been conferred upon said court. The validity of the first objection rests upon the construction to be given to section 111 of the Constitution, and the validity of the second objection rests upon the construction to be given to the various legislative enactments in force during relator's incumbency of said office, which enactments will be herein set forth in detail.

Pursuant to chapter 60, page 70, Laws 1903, the question was submitted to the voters of Ward county at the general election of 1904 whether that court should have jurisdiction over civil and criminal causes, and at such election county and state officers were also voted for. The proposition to increase the jurisdiction of the county court did not receive a majority of all the votes cast at that election for certain officers; but it did receive a majority of all the votes cast at said election upon the proposition whether the jurisdiction of said court should be increased. Section 111 of the Constitution, which authories the submission of that question to the voters of the county, is as follows, so far as material: It provides that said court shall have jurisdiction in probate, testamentary, and guardianship matters, “provided, that whenever the voters of any county * * * shall decide by a majority vote that they desire the jurisdiction of said court increased above that limited by this Constitution, * * * and in case it is decided by the voters of any county to so increase the jurisdiction of said county court. * * * In case the voters of any county decide to increase the jurisdiction of said county courts. * * *” It is apparent that the issue on this question must be determined by the meaning to be given to the words “whenever the voters of any county * * * shall decide by a majority vote.” As ordinarily understood, do the words “a majority of the voters of any county” mean a majority of the votes cast at that election for any purpose, or a majority of the votes cast upon the precise proposition to be submitted under that section of the Constitution?

The proposition in question was submitted to a vote at a general election, although the county commissioners could lawfully have submitted it to a vote at a special election called for that purpose. The Legislature empowered the commissioners to submit the question at a special or at a general election. The question whether the proposition to increase the jurisdiction of the county court was legally adopted should be determined from the language of the section without regard to the question whether it was submitted at a special or at a general election, inasmuch as the language of the section is general and contains nothing to indicate that a different rule should be applied in canvassing the vote depending upon whether the election is special or general. It is a principle applicable to such questions that a majority of the votes cast upon a submitted proposition is sufficient to carry it, unless the constitutional or statutory provision under which the proposition is submitted clearly shows that it was the intention that a different rule or principle should apply. As said in State v. Langlie, 5 N. D. 594, 67 N. W. 958, 32 L. R. A. 723: “The general policy of the American people is to test the sufficiency of any vote by the vote on that particular question, and not by the vote on some other question. Unless the language is free from doubt, we have no right to spell out of the statute by any far-fetched inference a purpose to depart from this general policy.” That was a case involving the construction of the statute relating to the relocation of county seats. Before the change became effective, “two-thirds of the votes polled” must have been cast in favor of one place. This court construed the provision to mean that only two-thirds of the votes cast upon the proposition was necessary to secure the removal of the county seat, and not two-thirds of all the votes cast at the election. In that case the court said: “The plain meaning of the statute is that the place having two-thirds of the votes polled on the particular question of relocation shall be the county seat. There is nothing in the statute indicating that to work a change of the county seat any one place must receive a vote of two-thirds of all the voters of the county. Ample authority sustains our decision. * * * When a majority of the electors is spoken of, the highest number of votes cast at the election must furnish the standard for determining whether the particular measure which must have such a majority has been carried.”

Although the language of the statute construed in that case is not identical with the section of the Constitution under consideration, we think that case decisive of the case at bar. Section 111 of the Constitution applies only to elections on the question of increasing the jurisdiction of county courts. The words by “a majority vote” mean more than one-half of the voters voting upon that question. If it was the intention that a majority of the electors of the county should vote in favor of increased jurisdiction, language expressive of that intention could easily have been found. The words “majority vote” clearly imply that there are votes for and against the proposition. The language clearly indicates a purpose to test the question whether the proposition covered by the section has carried by the votes cast on that question alone, and not by the number of votes upon some other question, or for some candidate. We think it would be an unnatural and strained construction to say that the words “majority vote,” as used in said section 111, mean a majority of the votes on some question not referred to in that section at all. Adhering to the principle that a majority of the voters voting on a particular question governs, unless a different construction is forced by the language of the Code or Constitution, we are convinced that a majority vote on the question covered by said section 111 is sufficient. The section refers to a special subject or matter. The general words of the section must receive the construction limiting their meaning to the subject to which the section refers. The words “voters” and “majority vote,” as used in that section, should be limited under that principle to refer only to the voters voting on the subject-matter of the section. We think this construction is emphasized as proper by the legislative enactments passed to carry the provisions of said section 111 into effect. The Legislature of 1903 provided for the submission of the question of increased jurisdiction of county courts to the “voters of the county,” and provided that the same could be done at either general or special elections at the discretion of the county...