State ex rel. Linde v. Hall

• Decision Date: 11 September 1916
• Citation: 159 N.W. 281,35 N.D. 34
• Court: North Dakota Supreme Court

159 N.W. 281

35 N.D. 34

STATE OF NORTH DAKOTA EX REL. HENRY J. LINDE, as Attorney General of the State of North Dakota, and Otto Bauer, as a Taxpayer, Relators, v. THOMAS HALL, as Secretary of State of the State of North Dakota

Supreme Court of North Dakota

September 11, 1916

Original writ of this court is ordered issued to enjoin the secretary of state from submitting to vote a void proposition upon capital removal.

Writ issued.

Miller Zuger, and Tillotson, Newton, Dullam, & Young, and Benton Baker, and Sullivan & Sullivan for petitioners.

Lawrence & Murphy, T. F. McCue, J. J. Youngblood, Rinker & Duell, W M. Jackson, J. S. Cameron, J. A. Manley, N. J. Bothe, and C J. Maddux for respondent.

GOSS J. BURKE, J., BRUCE, J., CHRISTIANSON, J., (concurring).

OPINION

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 § 215 of the state Constitution. Relator asserts among other things that the second subdivision of § 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 fulfils 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.

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, Red River Valley Brick Co. v. Grand Forks, 27 N.D. 8 at 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. 113, 25 L.R.A. 312, 36 P. 424, involving a capital removal from Sacramento to San Jose attempted by constitutional amendment; Chicago v. Reeves, 220 Ill. 274, 77 N.E. 237 at 237-240; Collier v. Frierson, 24 Ala. 100; and Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 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 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 ex rel. Postel v. Marcus, 160 Wis. 354, 152 N.W. 419.

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 a 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 hence the supreme court has jurisdiction to determine and declare that Acts 1911, chapter 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 propriety of the remedy of injunction against, submission of a proposed Constitution, when the result must be a nullity. Every contention of respondent is there answered, and the authorities are collected and analyzed so fully that but little, if anything, is left unsaid.

The same distinction is drawn in Carton v. Secretary of State, 151 Mich. 337, 115 N.W. 429, where it is said: "The constitutional convention is indeed the child of the law, but of the organic law, and not a legislative enactment. In this state the Constitution is the charter of the [subsequent constitutional] convention, and its sole charter."

For another recent decision to the same effect see Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B 916. The syllabus reads: "A determination of whether an amendment to the Constitution has been validly proposed and agreed to by the legislature is to be had in a judicial forum where the Constitution provides no other means for such determination. The act of the secretary of state in publishing and certifying to the county commissioners proposed amendments to the Constitution is in its nature ministerial, involving the exercise of no discretion, and if the act is illegal it may be enjoined in appropriate proceedings by proper parties, there being no other adequate remedy afforded by law. Where an alleged illegal ministerial official act has relation to legislative action, such action may be considered by the courts in determining the validity or invalidity of the ministerial act. This is not an interference by the courts with the legislative department of the government." The opposite is true. Mandamus will not lie to compel submission under the initiative of an ordinance which would be void if enacted. State ex rel. Davies v. White, 36 Nev. 334, 136 P. 110, 50 L.R.A. (N.S.) 195, and note. Mandamus was issued to compel election on recall petition ignored by city council where petition was legal and regular. Good v. San Diego, 5 Cal.App. 265, 90 P. 44. "The duty of the council is purely ministerial," and action can be compelled by mandamus. Conn v. Richmond, 17 Cal.App. 705, 121 P. 714, 719; Kadderly v. Portland, 44 Ore. 118, 74 P. 710, 75 P. 222; McBee v. Brady, 15 Idaho 761, 100 P. 97; Vincent v. Mott, 163 Cal. 342, 125 P. 346; State ex rel. Lynch v. Fairley, 76 Wash. 332, 136 P. 374; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440 at 440-504, 15 L.R.A. 561, 51 N.W. 724; Solomon v. Fleming, 34 Neb. 40, 51 N.W. 304; Cascaden v. Waterloo, 106 Iowa 673, 77 N.W. 333; Macon v. Hughes, 110 Ga. 795, 36 S.E. 247; De Kalb County v. Atlanta, 132 Ga. 727, 65 S.E. 72.

South Dakota, Oklahoma, and Colorado have apparently declared a different rule. State ex rel. Cranmer v. Thorson, 9 S.D. 149, 33 L.R.A. 582, 68 N.W. 202; Threadgill v. Cross, 26 Okla. 403, 138 Am. St. Rep. 964, 109 P. 558; People ex rel. O'Reilly v. Mills, 30 Colo. 262, 70 P. 322; and Speer v. People, 52 Colo. 325, 122 P. 768 (an affirmance by an equal division of justices). An election will not be enjoined for irregularities in the petition or procedure, as distinguished from an absence of law for the entire proceeding. Pfeifer v. Graves, 88 Ohio St. 473, 104 N.E. 529; Duggan v. Emporia, 84 Kan. 429, 114 P. 235, Ann. Cas. 1912A 719.

But that the sufficiency of the petition is a judicial question as well as the propriety of the remedy of injunction, has already been passed upon by this court in adjudicating the insufficiency of a petition for a state-wide referendum upon a legislative enactment, and holding it to be a judicial question, and in which proceedings in referendum were enjoined because void. State ex rel. Baker v. Hanna, 31 N.D. 570, 154 N.W. 704. On original writ this court therein declared: "As a referendum sets aside or suspends the will of the people as expressed by legislative act, petitions for a referendum should be required to comply strictly with the mandatory constitutional provisions under which a referendum is authorized. To require less is the equivalent of amending said constitutional provisions by court fiat, as well as to be derelict in enforcing the Constitution itself." The cases cited in State ex rel. Baker v. Hanna, supra; State ex rel. McNary v. Olcott, 62 Ore. 277, 125 P. 303; State ex rel. Halliburton v. Roach, 230 Mo. 408, 139 Am. St. Rep. 639, 130 S.W. 689; ...