State ex rel. Lein v. Sathre
| Decision Date | 09 March 1962 |
| Docket Number | No. 7998,7998 |
| Parties | STATE of North Dakota ex rel. Ray LEIN, John Hove, John M. Murphy, Walter Durkop, and Russell Duncan, Petitioners, v. P. O. SATHRE, Leslie R. Burgum, Ben Meier, Ben Wolf and Arthur Link, and Ben Meier, Secretary of State for the State of North Dakota, Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A constitutional amendment will prevail over previously adopted provisions of the Constitution with which it conflicts and with which it cannot be harmonized.
2. A constitution must be construed to give effect to the intention of the people who adopted it and it is presumed that the people did not intend an absurd result.
3. There is inherent in a constitutional direction to a legislature to apportion representatives among senatorial districts according to population a limited discretion to make an apportionment that will approach,
as nearly as is reasonably possible, a mathematical equality.
4. Under the provisions of Section 35 of the North Dakota Constitution, while the power of the group of officials designated to make an apportionment in event the Legislature failed to act expires 90 days after the adjournment of the Legislature, the duty of the Legislature to apportion is mandatory and continues until it is performed.
5. For reasons stated in the opinion, it is held that the apportionment made by the group of officials designated in Section 35 of the Constitution, the proclamation of which was dated May 26, 1961 and filed with the Secretary of State on May 29, 1961, is unconstitutional and void.
6. There having been no valid apportionment of the House of Representatives under Section 35 of the North Dakota Constitution, the last apportionment made by the Legislature (Chapter 7, Session Laws N.D.1931) continues as the apportionment under which legislative elections are held until it is superseded by a valid apportionment.
Conmy, Conmy & Feste, Fargo, for petitioners.
Leslie R. Burgum, Atty. Gen., Paul M. Sand, Asst. Atty. Gen., William R. Pearce, Sp. Asst. Atty. Gen., for respondents.
The petitioners herein presented to this Court a petition setting forth that they are citizens of the United States and of the State of North Dakota and as such are entitled to vote for members of the State Legislature, and that the Thirty-seventh Legislative Assembly of the State of North Dakota failed to make the reapportionment of members of the House of Representatives among the senatorial districts as provided by Section 35 of Article II of the Constitution of the State of North Dakota. Thereupon a group of persons consisting of the Chief Justice of the Supreme Court, the Attorney General, the Secretary of State, and the majority and minority leaders of the House of Representatives proceeded to make an apportionment under the provisions of that section of the Constitution and petitioners contend that the apportionment so made is unconstitutional and void for reasons that we shall discuss. The petitioners ask this Court to take original jurisdiction, determine that the purported reapportionment made by the group is void, and restrain the Secretary of State from doing any act necessary to the holding of elections for members of the House of Representatives until such time as a reapportionment is made in accordance with the Constitution.
This controversy is clearly one affecting the sovereignty of the State and the franchises, prerogatives and liberties of the people and is clearly within the jurisdiction of this Court as prescribed by Section 87 of the North Dakota Constitution.
In State of North Dakota ex rel. Aamoth, the petitioner, against the same respondents, N.D. 110 N.W.2d 228, involving a similar attack upon the validity of the same reapportionment, we took jurisdiction of the case and determined that the attack was premature and dismissed the petition.
At the hearing of this case it was agreed between counsel for all of the parties and the Court that the matter would be submitted at the one hearing on both the question of jurisdiction and on the merits, and it was argued and briefed accordingly.
We now proceed to a consideration of the constitutionality and validity of the apportionment made by a majority of the group designated by Section 35, with the Secretary of State voting 'no.' The result was set forth by a proclamation of the Chief Justice pronouncing such apportionment, dated May 26, 1961, and filed in the office of the Secretary of State May 29, 1961. No questions arising under the United States Constitution are presented to this Court, and we are informed by counsel that they are involved in another action now pending in Federal courts.
The Thirty-sixth Legislative Assembly (1959) passed Senate Concurrent Resolution M, Laws 1959, c. 438, proposing an amendment to the Constitution, which reads as follows:
This amendment was approved by the people on June 28, 1960, by a vote of 84,002 to 66,529. See Session Laws N.D. 1961, c. 405, page 692. The Thirty-seventh Legislative Assembly (1961), being the first regular session after the 1960 Federal Decennial Census, failed to apportion pursuant to Section 35, as amended, and the group of officials upon whom the duty to apportion then devolved proceeded to act.
It is argued that participation of the Attorney General and Secretary of State was prohibited because they are executive officers of the State government, and that apportionment of the membership of the Legislature is a legislative matter. The petitioners refer to Section 25 of the State Constitution which vests the legislative power of the State in the Legislature, subject to the reserve power in the people of the initiative and referendum, and Section 37 of the Constitution which prohibits the Attorney General and Secretary of State from holding any office in either branch of the Legislative Assembly.
With respect to the Chief Justice, it is pointed out that Section 96 of the Constitution prohibits the imposition by law upon the Supreme Court, or any of the judges thereof, duties other than judicial. It is then argued that the designation of a majority of the group by Section 35 is violative of other provisions of the Constitution and therefore void, and that the group had no power to act.
This argument is wholly without merit. All of the sections upon which the petitioners rely have been a part of the Constitution for many years. Section 35, being a recent amendment, governs to the extent that it creates exceptions to the earlier prohibitions by vesting the three officers named with the specific power and duty to act as members of a group that were directed to proceed with reapportionment under the circumstances and in the manner prescribed by Section 35. The applicable rule of law is stated in Cooley's Constitutional Limitations, Eighth Edition, Volume One, page 129, as follows:
Section 35 is the latest expression of the will of the people with respect to matters embraced therein and prevails over all preexisting inconsistent constitutional provisions. 11 Am.Jur., Constitutional Law, Section 54; 16 C.J.S. Constitutional Law Sec. 26; Thoman v. City of Lansing, 315 Mich. 566, 24 N.W.2d 213. See also Dawson v. Tobin, 74 N.D. 713, 24 N.W.2d 737; Egbert v. City of Dunseith, 74 N.D. 1, 24 N.W.2d 907, 168 A.L.R. 621; Swanson v. State, 132 Neb. 82, 271 N.W. 264.
We now turn to a consideration of the effect of the amendment approved on June 28, 1960. The amendment of Section 29 took from the Legislative Assembly the power to fix the number of senators and determine the boundaries of their districts. It permanently fixed both the number of senators and the district boundaries as they existed at the time of the adoption of the amendment. The amendment of Section 26 fixed the number of senators at 49. The amendment of Section 35 dealt with the House of Representatives. The first sentence of that amendment gave one representative to each senatorial district, which accounted for 49 members of the House. It then further provided that districts...
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