State ex rel. Linde v. Hall

• Decision Date: 11 September 1916
• Parties: STATE ex rel. LINDE, Atty. Gen., et al. v. HALL, Secretary of State.
• Court: North Dakota Supreme Court

35 N.D. 34

159 N.W. 281

STATE ex rel.

LINDE, Atty. Gen., et al.

v.HALL, Secretary of State.

Supreme Court of North Dakota.

Sept. 11, 1916.

Syllabus by the Court.

Original writ of injunction to prevent submission upon ballot at the coming general election of an amendment to section 215 of the state Constitution to remove the seat of state government from Bismarck to New Rockford. A petition for such a constitutional amendment was filed with respondent, who, unless restrained, will submit said question to ballot. Relators assert that the petition filed is void, claiming that subdivision 2 of section 202 of the state Constitution is not self-executing, and hence that, until legislation is passed to make it possible to operate under subdivision 2, the Constitution cannot be amended by initiative petition.

Held: The legal sufficiency of the petition filed is a judicial, and not a legislative, question.

In filing such a petition for and in submitting to a vote a proposition to amend the Constitution by initiative petition the secretary of state is not a legislative agent, and performs only ministerial duties reviewable in judicial proceedings.

The proposal of constitutional amendments, whether by resolution of the Senate and House of Representatives or by initiative petition, is not legislation, and involves no legislative act or province, or power of state sovereignty, but is merely a duty ministerial in character, fixed by and to be exercised only under and by compliance with the terms of the Constitution.

Whether proceedings to amend a Constitution are valid as performed within such constitutional limitations is a proper judicial inquiry, and its determination by court decision is not an invasion by the judiciary of the constitutional functions, province, and legislative duties of the legislative department of the government.

Subdivision 2 of section 202 of the State Constitution is not, and was not intended to be, self-executing, but is only a mandate to succeeding Legislatures to provide laws whereunder the Constitution may be amended by initiative petition. This is the very apparent intention, because:

(a) Subdivision 2 contemplates that the publication of notice of submission of such amendments shall be regulated and prescribed by future legislation.

(b) Subdivision 2 contemplates that legislation shall be enacted declaring the percentage of signers actually necessary to propose constitutional amendments, as the words of said subdivision 2 “of at least twenty-five per cent.” was intended to be but a limitation upon the Legislature that at least 25 per cent. should be required, but not to declare the percentage necessary, leaving that to future legislative action to determine the proper and necessary minimum percentage to be required, whether that percentage be 25 per cent. or more than 25 per cent.

(c) It is strongly indicative of necessity for future legislation that no definite rule for computation of any requisite percentage of signers is declared under subdivision 2, while under the constitutional provision as to initiative of legislation the basis is there prescribed as “the whole number of votes cast for secretary of state at the regular election last preceding the filing” of the petition.

(d) The failure to mention or prescribe the substance or form of an enacting clause to constitutional amendments proposed by initiative petition, while the provision for initiative of legislation does prescribe the form of the enacting clause to be used, is strong evidence that future legislation would supplement said subdivision 2 by defining the form of any enacting clause to be used thereunder.

(e) The history of its enactment, taken in the light of contemporaneous legislative action upon these and other concurrent resolutions introduced in or passing at the legislative sessions of 1911 and 1913, negatives an intent that subdivision 2 should be self-executing.

(f) Our constitutional provisions were taken from the Oregon Constitution. The omission of the words found in the Oregon Constitution that would have made this provision self-executing, and then so interpreted there by court decision thereon, must be presumed to have been deliberate and intentional and for the purpose of preventing subdivision 2 from being construed as self-executing.

As there is no law authorizing any amendment of our state Constitution by initiative proceedings, the petition is void upon which the respondent threatens to submit this question to vote.

A court should enjoin submission of such a question where there is no law under which it could be legally submitted to a vote.

Petitioners have a sufficient interest to maintain this action.

Original application by the State of North Dakota, on the relation of Henry J. Linde, Attorney General, and Otto Bauer, as taxpayer, for an injunction against Thomas Hall, as Secretary of the State of North Dakota, heard on order to show cause. Writ issued.Miller, Zuger & Tillotson, Newton, Dullam & Young, and Benton Baker, all of Bismarck, and Sullivan & Sullivan, of Mandan, for petitioners. Lawrence & Murphy, of Fargo, T. F. McCue, of Carrington, J. J. Youngblood, of Fessenden, and Rinker & Duell, W. M. Jackson, J. S. Cameron, J. A. Manly, N. J. Bothne, and C. J. Maddux, all of New Rockford, for respondent.

GOSS, J.

This court issued an order to show cause why it should not issue an original writ of injunction to stay further proceedings in capital removal instituted by the filing with the secretary of state of a petition for submission of a proposed amendment to section 215 of the state Constitution. Relator asserts, among other things, that the second subdivision of section 202 of our state Constitution, purporting to authorize initiative and referendum amendment thereof, is not self-executing, and therefore that said petition is void, and that submission of any proposition thereunder should be enjoined.

Respondent, secretary of state, asserts that this court is without jurisdiction or power to interfere with his official action, asserting that, when so acting, he is a legislative agent of the people, and fulfills a legislative function in submitting said matter to vote, and that to stay submission of the question at the coming election, or to make any judicial inquiry as to the legality of the petition filed, is not only judicial interference with legislation in course of enactment, but it is an unwarranted and unconstitutional usurpation of legislative power by the judiciary.

[1][2][3][4] This contention will be first noticed. It is premised upon the erroneous basic assumption that the enacting of a constitutional amendment is an exercise of a legislative power confided as legislative subject-matter upon the legislative department of government, as is ordinary legislation. While in a sense such may be a political or legislative matter for determination as a political question (Railroad V. Brick Co. v. Grand Forks, 27 N. D. 8-27, 145 N. W. 725), yet in its submission for adoption or rejection neither legislative province nor power is involved. Whether the people by initiative petition or by legislative proposal amend the fundamental law they are in either instance-

“merely acting under a limited power conferred * * * by the people, and which might with equal propriety have been conferred upon either house, or upon the Governor, or upon a special commission, or any other body or tribunal. The extent of this power is limited to the object for which it is given, and is measured by the terms [of the Constitution] in which it has been conferred, and cannot be extended by the Legislature to any other object, or enlarged beyond these terms. * * * In submitting propositions for the amendment of the Constitution, the Legislature is not in the exercise of its legislative power, or of any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people.” Livermore v. Waite, 102 Cal. 118, 36 Pac. 426, 25 L. R. A. 312, involving a capital removal from Sacramento to San Jose attempted by constitutional amendment; Chicago v. Reeves, 220 Ill. 274, 77 N. E. 237-240;Collier v. Frierson, 24 Ala. 108; and Oakland v. Hilton, 69 Cal. 479, 11 Pac. 3.

“The Legislature in executing its functions [in proposing constitutional amendments] does not legislate in a technical sense. The result does not need the approval of the Governor. The duty is ministerial in character. There is good reason why the manner of procedure, so far as material-and the people must be presumed to have settled the question of what is material-must be followed. The power to make law, within fundamental limitations, is inherent in the division of the government formed for that purpose. It does not need any express grant, but it does not include making or proposing fundamental law. The power to so propose is a special grant and must be exercised within the scope of the grant.” State v. Marcus, 160 Wis. 354, 362, 152 N. W. 419, 423.

A lucid exposition of this principle is also found in Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 200, and note citing much authority. Submission for adoption by ballot of a new Constitution proposed by the Indiana Legislature was there enjoined. The syllabus reads:

“The power [to declare the law] vested in the judicial department of government covers the whole body of law, fundamental [constitutional] and ordinary, and hence whether legislative action is void for want of power in that body, or because the constitutional forms or conditions have not been followed or have been violated, may become a judicial question, and the Supreme Court has jurisdiction to determine and declare that Acts 1911, ch. 118, providing for the submission by the Legislature of a proposed new Constitution to the vote of the electors, is void as not within the power of the Legislature.”

This covers both the jurisdiction of courts over and the...