State ex rel. McCue v. Blaisdell

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtSPALDING
Citation18 N.D. 31,119 N.W. 360
Decision Date16 January 1909
PartiesSTATE ex rel. McCUE, Atty. Gen., v. BLAISDELL, Secretary of State, et al.

18 N.D. 31
119 N.W. 360

STATE ex rel.
McCUE, Atty. Gen.,
v.
BLAISDELL, Secretary of State, et al.

Supreme Court of North Dakota.

Jan. 16, 1909.



Syllabus by the Court.

[119 N.W. 360]

Section 168 of the Constitution reads: “All changes in the boundaries of organized counties, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such election.”

Held:

(a) That the word “electors” as used in said section means all persons possessing the qualifications as to residence, age, and citizenship prescribed by section 121 of the Constitution as necessary to entitle them to vote.

(b) “Shall be submitted to the electors” means that all persons who are qualified to vote in the given county, or counties, shall, in a legal manner,

[119 N.W. 361]

be given an opportunity to vote on the question of a change in the boundaries.

(c) That a “vote” is the registration in accordance with law of the preference or choice of an elector on a given subject.

(d) That “votes cast” are the totals of the separate votes or expressions of voters' preferences for or against a change in boundaries.

A “voter,” as distinguished from an elector, is an elector who actually votes.

A “ballot,” as distinguished from a vote, is the sheet of paper on which the voter expresses his choice of candidates, or for or against a proposition, or both.

A majority of the votes cast upon a question submitted to a vote, if in the affirmative, carries it, unless the legislative will to the contrary is clearly expressed in the Constitution or the law.

In a strict legal sense, although the vote on a change in county boundaries is cast at a general election, it is the holding of a “separate election,” but held in connection with the general election for convenience, to save expense, and because of the numerous subjects then voted upon, a more complete expression of the preferences of the electors is obtained.

Legislative construction, when followed by years of harmonious subsequent legislation, is entitled to great weight in determining the construction of constitutional provisions.

The elector who does not participate in an election acquiesces in the result of the votes cast by those who do participate, and to hold that the language of section 168 of the Constitution requires more than half as many affirmative votes to be cast in favor of a change in boundaries as are cast on any other subject at the same election would be to give as much effect to the act of an elector who did not vote on such change as to that of one who voted in the negative, and render the statutory provision for negative votes useless.

The meaning of words in a statute must often be determined by the subject-matter in relation to which they are used; and, as section 168 relates only to the change of county boundaries, the words “votes cast” should be limited to that subject.

A legislative body, in adopting a foreign statute which has been construed by the courts of the state from which it comes, is presumed to have adopted the construction there given it.

The question of a change in the boundaries of Ward county, and the erection of the new county of Mountraille from a portion of Ward county, was duly submitted to the electors of that county at the general election of 1908. Four thousand two hundred and seven votes were cast in favor of the proposition, and 4,024 in opposition, while in that county at such election there were cast 9,259 votes for the different candidates for governor. Held, that the change voted upon was thereby effected.


Original application by the state, on relation of T. F. McCue, Attorney General, for a writ of certiorari to be directed to Alfred Blaisdell, as Secretary of State, and J. W. Fabrick, as County Auditor of Ward County. Application denied, and temporary writ quashed.

T. F. McCue, Atty. Gen., and John E. Greene, for relator. Geo. A. Bangs, for respondents.


SPALDING, J.

Section 168 of the Constitution of this state, as far as pertinent to the present controversy, reads as follows: “All changes in the boundaries of organized counties, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such election.” At the general election in 1908 several propositions for the division of, and the creation of, new counties from the present county of Ward were duly submitted to the electors of that county. None of the propositions received a majority of the votes cast thereon, except the one relating to the creation of the county of Mountraille. This question received 4,207 affirmative votes, and 4,024 negative votes. It is shown that the various candidates for governor of the state received at that election in Ward county the aggregate number of 9,259 votes. It is apparent from these figures that the proposition to create the new county of Mountraille, while receiving a majority

[119 N.W. 362]

of the votes cast on that proposition, did not receive more than half as many favorable votes as the total vote for governor. On application of the Attorney General the alternative writ of this court was issued, directed to the Secretary of State and the county auditor of Ward county, and requiring them to certify and return a transcript of the records, certificates, and returns in their custody, etc., to this court, and these officers were by the writ commanded to desist from proceeding in the premises until the further order of this court. Return was duly made by the respondent Blaisdell, as Secretary of State, showing the number of votes cast on the question, and the total number of votes cast for governor, as above set forth, and both parties appeared by counsel and submitted their arguments.

The sole question for determination is the proper construction of section 168, supra, as applied to the facts disclosed by these returns. The relator contends that the section referred to, properly construed, requires an affirmative vote equal in number to a majority of the total votes cast for the different candidates for governor, or more than half the highest number of votes cast in Ward county for candidates for any one office, or on any one question, voted upon at such general election. On the other hand, the respondent contends that when properly construed, the constitutional provision mentioned requires only a majority of the votes cast, upon the creation of the county named, to be favorable, to create the new county. At the outset the relator concedes the correctness of this principle and rests his whole contention upon it, namely, that where there is submitted to a vote of the electors of a given county, or other district, a special question, whether so submitted at a general or special election, a majority of the votes cast upon that question, only, will be sufficient to carry the question or adopt the proposition, unless the legislative will to the contrary is clearly expressed in the law or the Constitution, as the case may be. We may concede that this is a correct statement of the legal principle involved, both on theory and authority. In the present instance he contends that the language of section 168 clearly expresses the meaning of the framers of the Constitution as being that the special question so submitted is lost, unless it receives more than half as many votes as are cast for any office or on any question to be filled or submitted at the same election. Seldom is a question presented on which there is a greater apparent conflict of authority than on the construction of this and similar language contained in statutes and Constitutions of the different states. Matters of importance are pending and held in abeyance in Ward county until this proceeding is decided. The same question is awaiting our decision in other counties, and the exigency requires speedy action on the part of this court. We have given it careful consideration, and have no doubt of the correctness of the conclusion at which we have arrived, both on principle and authority, but to present the reasons for our conclusions logically, with a careful analysis of the different, and oftentimes conflicting, authorities, would require more time than we feel justified in taking, in view of the reasonable demand for speedy action. We shall therefore content ourselves with stating more briefly our reasons, and referring less fully to authorities than we should otherwise like to do.

We deem it advisable to first consider and determine the meaning of certain words contained in the constitutional provision quoted. Stripped of meaningless words, as applied to the present controversy, and to simplify matters, we may read that portion of section 168 quoted as follows: “All changes in the boundaries of organized counties shall be submitted to the electors at a general election and be adopted by a majority of the votes cast at such election.” The word “electors” may be used to apply to different classes or bodies of people. It is sometimes applied to all persons who are qualified to vote within their respective political subdivisions. At other times it is used as synonymous with “voters,” and in many instances has been used indiscriminately and interchangeably with the word “voters.” But its meaning in the section in question is not left in doubt, because it is defined by the Constitution itself. Section 121, as amended, reads: “Every male person of the age of twenty-one years or upwards, belonging to either of the following classes who shall have resided in the state one year and in the county six months and in the precinct ninety days next preceding any election, shall be a qualified elector at such election. 1st. Citizens of the United States. 2nd. Civilized persons of Indian descent who shall have severed their tribal relations two years...

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46 practice notes
  • State v. Jacobson, Nos. 950259
    • United States
    • United States State Supreme Court of North Dakota
    • March 15, 1996
    ...construction of a constitutional provision is entitled to significant weight when we interpret the provision."]; State v. Blaisdell et al., 18 N.D. 31, 38-39, 119 N.W. 360 (1909) [legislative construction that "has been followed by a harmonious and constant course of subsequent legislation ......
  • State ex rel. Birdzell v. Jorgenson
    • United States
    • United States State Supreme Court of North Dakota
    • June 17, 1913
    ...v. Blaisdell et al., 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741;State ex rel. McCue v. Blaisdell et al., 18 N. D. 31, 119 N. W. 360;State ex rel. Miller v. Norton, 20 N. D. 180, 127 N. W. 717;State ex rel. Williams v. Meyer, 20 N. D. 628, 127 N. W. 834;State e......
  • State ex rel. Byerley v. State Bd. of Canvassers
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1919
    ...a rule of construction affecting personal and property rights, the rule of stare decisis obtains. Held, following State v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and other cases: (a) That a “vote” is the registration in accordance with law of the preference or choice of an elector on a give......
  • State ex rel. Minehan v. Thompson
    • United States
    • United States State Supreme Court of North Dakota
    • February 10, 1913
    ...to mean a majority of all votes cast on county division. See State ex rel. McCue, Attorney General, v. Blaisdell, Secretary of State, 18 N. D. 31, 119 N. W. 360. We do not here determine whether to create this new county a majority of all votes cast on all county division propositions submi......
  • Request a trial to view additional results
46 cases
  • State v. Jacobson, Nos. 950259
    • United States
    • United States State Supreme Court of North Dakota
    • March 15, 1996
    ...construction of a constitutional provision is entitled to significant weight when we interpret the provision."]; State v. Blaisdell et al., 18 N.D. 31, 38-39, 119 N.W. 360 (1909) [legislative construction that "has been followed by a harmonious and constant course of subsequent legislation ......
  • State ex rel. Birdzell v. Jorgenson
    • United States
    • United States State Supreme Court of North Dakota
    • June 17, 1913
    ...v. Blaisdell et al., 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741;State ex rel. McCue v. Blaisdell et al., 18 N. D. 31, 119 N. W. 360;State ex rel. Miller v. Norton, 20 N. D. 180, 127 N. W. 717;State ex rel. Williams v. Meyer, 20 N. D. 628, 127 N. W. 834;State e......
  • State ex rel. Byerley v. State Bd. of Canvassers
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1919
    ...a rule of construction affecting personal and property rights, the rule of stare decisis obtains. Held, following State v. Blaisdell, 18 N. D. 31, 119 N. W. 360, and other cases: (a) That a “vote” is the registration in accordance with law of the preference or choice of an elector on a give......
  • State ex rel. Minehan v. Thompson
    • United States
    • United States State Supreme Court of North Dakota
    • February 10, 1913
    ...to mean a majority of all votes cast on county division. See State ex rel. McCue, Attorney General, v. Blaisdell, Secretary of State, 18 N. D. 31, 119 N. W. 360. We do not here determine whether to create this new county a majority of all votes cast on all county division propositions submi......
  • Request a trial to view additional results

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