State ex rel. Miller v. Taylor
| Decision Date | 11 December 1911 |
| Court | North Dakota Supreme Court |
Original application by the State, on the relation of Andrew Miller, Attorney General, for an injunction permanently restraining E. J. Taylor and others, as the State Board of Normal School Trustees, from establishing a state normal school in the City of Minot, and Gunder Olson, as Treasurer from paying out the money of the State therefor.
Denied and temporary order quashed.
Temporary writ quashed, and the application for permanent injunction denied.
Andrew Miller, Attorney General, and Alfred Zuger and C. L. Young, Assistant Attorneys General, for the State.
John E. Greene, Francis J. Murphy, Robert H. Bosard, H. L. Halvorson, Dorr H. Carroll, and V. B. Noble, for defendants.
This is an application for a permanent injunction restraining the defendants, who are the State Board of Normal School Trustees, and the state treasurer, from locating a proposed normal school at the city of Minot, in Ward county, and expending any money belonging to the state of North Dakota for such purpose or for the erection of buildings therefor. The questions involved are of great temporary interest and importance; but, as the main question is unlikely ever to arise a second time, we shall content ourselves with stating the reasons for our conclusions as briefly as possible.
Article 19 of the Constitution prepared by the constitutional convention in 1889, and in October of that year approved by the voters of that part of the territory now comprised in the state of North Dakota, locates the public institutions of the state. It is composed of §§ 215 [22 N.D. 365] and 216. Section 215 provides that the following public institutions of the state are permanently located at the places thereinafter named, each to have the land specifically granted to it by the United States in the enabling act, to be disposed of and used in such manner as the legislative assembly may prescribe, subject to the limitations provided in the article on school and public lands, contained in the Constitution: The seat of government, the state university, the school of mines, the agricultural college, a normal school at Valley City and one at Mayville, a deaf and dumb asylum, a reform school, and a state hospital for the insane and institution for the feeble minded in connection therewith. And provision is made for the apportionment of public lands among some of them.
Section 216 provides that the following named public institutions are permanently located, each to have so much of the remaining grant of 170,000 acres of land made by the United States for other educational and charitable institutions as allotted by law, namely: A soldiers' home, or such other charitable institution as the legislative assembly may determine, at Lisbon; a blind asylum, or such other institution as the legislative assembly may determine, to be determined by an election, in Pembina county; an industrial and manual training school, or such other educational or charitable institution as the legislative assembly may provide; a school of forestry, or such other institution as the legislative assembly may determine, at a place to be selected by the electors of four specified counties.
The locations of the foregoing institutions are named, and a portion of the land granted apportioned among them. The fifth subdivision of § 216 reads: "A scientific school, or such other educational or charitable institution as the legislative assembly may prescribe, at the city of Wahpeton, county of Richland, with a grant of 40,000 acres; provided, that no other institution of a character similar to any one of those located by this article shall be established or maintained without a revision of this Constitution."
Article 15, comprising § 202 of the Constitution, reads as follows:
The tenth legislative assembly adopted a concurrent resolution for an amendment to the Constitution by adding to the institutions named in § 216 a state normal school at the city of Minot, in the county of Ward. This resolution was certified to the eleventh legislative assembly, adopted by it, and submitted at the general election held in November, 1910, when it met with approval. By these proceedings the amendment took the form of a submission of all formerly contained in § 216, with the addition of a sixth paragraph providing for the Minot normal school.
The main contention of the state on this application is that by the terms of the proviso found in the 5th subdivision of § 216, supra, the legislative assembly had no power to submit to the electors an amendment increasing the number of normal schools. The substance of its claim is that at the time of the adoption of our Constitution the word "revise" or "revision," used in reference to changes in Constitutions, had a definite or technical legal meaning, and that the word "amend" or "amendment," in such connection, had a quite different meaning; that the word "revise" or "revision," in such connection, was associated only with the calling and holding of a constitutional convention, with power to make or submit complete or partial changes in the constitution as it might deem expedient; that the method provided by our Constitution for making amendments through the means of submission by the legislative assembly to the electors was known as the legislative method, and was well understood in law to refer only to specific or definite changes or additions to the Constitution as it existed; and that the word did not relate or refer to any other than the legislative method, and certainly not to changes made by means of a convention. In other words, that "to revise" means to submit the subject to the people through a constitutional convention, and to "amend" relates only to a submission through the legislative assembly. It is urged on the part of the state that, by the use of the words, "without a revision of this Constitution," the constitutional convention, and the people adopting the Constitution, have said that the powers of the legislative assembly as defined by article 15, supra, are limited, and that article 19 cannot be changed by amendment so as to increase the number of similar institutions, and that the hands of the legislative assembly are tied regarding the submission of amendments.
On the other hand, respondents' contention is that revision and amendment are synonymous terms, in connection with the changes in a Constitution; and that the proviso in § 216 means precisely the same as though it read, "without amendment of this article," and that the courts are not concerned with the technical or strict legal meaning of the word "revision."
Having thus stated the main question and the claims of the respective parties concerning it, we proceed to consider some of the reasons which impel us to the conclusion which we reach. And in doing so we may concede that in a general way the word "revision" and the word "amendment," in connection with changes in Constitutions, are treated by some authorities as applying to two distinct methods of making changes such as those to which reference has been made.
The question before us is what meaning attaches to the word "revision," as employed in § 216. In the states of the American Union, sovereignty inheres in the people. Constitution North Dakota, § 2. Constitutions are adopted to insure a stable system of government, including a division into departments, fixing the number and character of offices in each, and in general providing a scheme or system of government. In addition to this, such Constitutions are a means employed by the sovereign people to limit the powers of their agents, especially those of the legislative department. When a method of submitting amendments to the Constitution, originating in the legislative assembly, is provided, that body, in framing and submitting them to the electors for ratification or rejection, does not act in its legislative capacity, but as the agent of the sovereign people appointed by and through the terms of the organic law. Livermore v. Waite, 102 Cal. 113, 25 L.R.A. 312, 36 P. 424.
In determining whether this agency of the sovereign people was authorized by its principal to submit the amendment in question, we first consider what the nature of the change attempted in article 19 was. Was its character such as to make it essentially an...
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