State ex rel. Langer v. Crawford

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: ROBINSON
• Citation: 36 N.D. 385,162 N.W. 710
• Decision Date: 20 June 1917
• Parties: STATE ex rel. LANGER, Atty. Gen., v. CRAWFORD et al.

36 N.D. 385
162 N.W. 710

STATE ex rel.
LANGER, Atty. Gen.,
v.
CRAWFORD et al.

Supreme Court of North Dakota.

April 28, 1917.
Rehearing Denied June 20, 1917.

Syllabus by the Court.

The provision in section 2 of chapter 237, Laws 1915 (commonly known as the state Board of Regents Act), empowering the Governor to nominate and the Senate to confirm nominations for the offices of members of the state Board of Regents during the same session of the Legislature at which the act creating the offices were enacted, does not conflict with or contravene the initiative and referendum amendment to section 25 of the state Constitution.

Original proceeding by the state on the relation of William Langer, Attorney General, for a writ of quo warranto, to oust Lewis F. Crawford, Frank White, J. D. Taylor, Emil Scow, and J. A. Power, from the offices of members of the State Board of Regents. Petition denied.

Birdzell and Grace, JJ., dissenting.

[162 N.W. 710]

William Langer, Atty. Gen., and H. A. Bronson and D. V. Brennan, Asst. Attys. Gen., for relator. Lawrence & Murphy, of Fargo, and Fisk, Murphy & Linde, of Bismarck, for respondents.

ROBINSON, J.

This is a simple case. Its purpose is to oust the Board of Regents on the ground that their appointment was irregular. The appointment was made by the Governor on March 9, 1915. It was made pursuant to a resolution of the Senate passed on March 5th, under an act approved March 4, 1915. This act contains an emergency clause, as per section 67 of the Constitution. On its final passage in the House there were 74 ayes; no nays, and 38 absent and not voting; in the Senate there were 45 ayes; no nays and 4 absent or not voting, and so the bill was regularly passed in accordance with this section 67, which reads:

Sec. 67. “No act of the Legislative Assembly shall take effect until July first, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act) the Legislative Assembly shall, by a vote of two-thirds of all the members present in each house, otherwise direct.”

So far as material, section 25 of the Constitution, as amended, is as follows:

“The second power is the referendum, or the power to order any act, item, or part of any act

[162 N.W. 711]

to be referred to the people for their approval or rejection at the polls, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety), as to any measure or any parts, items or sections of any measures passed by the Legislative Assembly either by a petition signed by ten per cent. of the legal voters of the state from a majority of the counties, or by the Legislative Assembly, if a majority of the members elect vote therefor. When it is necessary for the immediate preservation of the public peace, health or safety that a law shall become effective without delay, such necessity and the facts creating the same shall be stated in one section of the bill, and if upon an aye and no vote in each house two-thirds of all the members elected to each house shall vote on a separate roll call in favor of the said law going into instant operation for the immediate preservation of the public peace, health or safety, such law shall become operative upon approval by the Governor. * * * Any measure referred to the people shall take effect when it is approved by a majority of the votes cast thereon and not otherwise, and shall be in force from the date of the official declaration of the vote.”

The meaning of this last sentence is that if an act has been referred to the people it shall take effect only when it is approved by a majority of the votes cast thereon. This applies to all acts passed without an emergency clause, as such acts do never take effect within 90 days. The amendment does not in any way repeal or modify section 67 of the Constitution. It may be extremely important that an act not relating to the public peace, health or safety should take effect on its passage. Manifestly it was not the purpose of the referendum to put it in the power of 10 per cent. of the voters to block and hold up until a general election the most important measures that might be passed by the unanimous or the two-thirds vote of the Legislative Assembly. Such a power to block and hold up might be very disastrous to the state and to the rule of the people.

The people have justly more confidence in the unanimous or two-thirds vote of their duly elected representatives than in ten per cent. of the voters. Were it not so, the referendum section should have expressly repealed section 67, and provided that, excepting acts relating to the public peace, health, and safety, no act should take effect until the time limited for a referendum petition.

The act relating to the appointment of a Board of Regents, which is chapter 237 of the Laws of 1915, was passed with an emergency clause as provided by section 67 of the Constitution, and on March 4th it became a law and the appointments made under it were in all respects regular and according to law. There is no reason for holding that in appointing the Regents the governor had any kingly powers, or any power except as given by the plain words of the statute then in full force and effect. Objection was made to the nomination by the Governor before the act took effect, but the nomination was a mere incident. It was no part of the appointment. It was merely a continuous recommendation from the time it was made until it was approved by the Senate.

There is another point of no small importance, which was not presented by either counsel. It relates to the practical construction of the emergency provision of the Constitution. The referendum amendment was adopted by a vote of the people at the general election in 1914. The following Legislative Assembly passed 273 acts. No act was passed with an emergency section as provided for by the referendum amendment, but 64 acts were passed with an emergency section as provided for by section 67 of the Constitution. Each act declared that it should take effect and be in force from and after its passage and approval, and each of the 64 acts were given immediate force and effect. Now it is fearful to contemplate the complications and wrongs which might result from holding void all proceedings under the 64 acts from their passage until the following July.

As the Laws of 1917 have not yet been published, I cannot give so definite a statement regarding the emergency clauses. Many of them are framed under section 67, and others under the peace, health, and safety section. Thus the Sabbath bill declares it necessary for the peace, health, and safety that the bill should take effect and be in force from and after its passage. A bill appropriating $1,500 for railroad commissioners declares it necessary for the peace, health, and safety, and so of a bill appropriating a few dollars for the School of Mines; and so of a bill taking private property to lay out a highway. And a bill appropriating $75 expense on a bust of Abraham Lincoln is declared to be necessary for the public peace, health, and safety. There is no emergency clause which complies with the Constitution in regard to stating the facts showing that it is necessary for the public peace, health, and safety that the law should become effective without delay.

There has also been presented a kind of moot question concerning the future power of the Governor to fill vacancies. The members of the board are appointed for a definite term of years, and by section 3 of the act it is provided that in case of a vacancy the Governor may fill the same by appointment until the commencement of the next session of the Legislative Assembly. The members are appointed for a definite term of years, and it must follow at the end of each term a vacancy does exist which the Governor may fill by appointment. The members of the present board have been duly appointed to hold for a definite term of years, as shown by their commission and certificate of appointment, and that commission shows when their term of office expires. The petition should be denied.

BRUCE, C. J. (specially concurring).

I concur with Mr Justice ROBINSON that the

[162 N.W. 712]

petition in this case should be denied. I do not, however, fully concur in all that he has said or in the result which he arrives at on his last proposition.

I am clearly of the opinion that there are two emergency clauses provided for in North Dakota, or rather an emergency clause and a clause which denies the right to a referendum in certain cases. I am satisfied that these clauses are not inconsistent with one another. Section 67, art. 2, of the Constitution provides that:

“No act of the Legislative Assembly shall take effect until July first, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act) the Legislative Assembly shall, by a vote of two-thirds of all the members present in each house, otherwise direct.”

Section 25, art. 2, before its amendment, merely provided that:

“The legislative power shall be vested in a Senate and House of Representatives.”

It said nothing in regard to the time in which a bill should take effect. The amendment to this section and article not only did not repeal its provisions, but re-enacted the whole of the original section. It merely added to the general and fundamental enactment that:

“The legislative authority of the state of North Dakota shall be vested in a Legislative Assembly consisting of a Senate and House of Representatives;”

-the further provisions that:

“The people reserve to themselves power to propose laws and to enact or reject the same at the polls,” and that “Any measure referred to the people shall take effect when it is approved by a majority of the votes cast thereon and not otherwise, and shall be in force from the date of the official declaration of the vote.”

Nothing is said in the amendment as...