State ex rel. Morris v. Sherman

• Decision Date: 13 December 1932
• Docket Number: No. 6126.,6126.
• Citation: 63 N.D. 9,245 N.W. 877
• Parties: STATE ex rel. MORRIS, Atty. Gen., v. SHERMAN, County Auditor.
• Court: North Dakota Supreme Court

63 N.D. 9

245 N.W. 877

STATE ex rel.MORRIS, Atty. Gen.,

v.SHERMAN, County Auditor.

No. 6126.

Supreme Court of North Dakota.

Dec. 13, 1932.

Syllabus by the Court.

1. In construing provisions of the Constitution governing the time when laws may take effect, it is proper to consider the extent to which a given construction of a particular provision will detract from the meaning and effect of other express provisions, and it is appropriate to consider the difficulties attendant upon a given construction.

2. Elections belong to the political branch of the government and are beyond the control of the judicial power, in the absence of special authorization.

3. The provision in section 25 of the Constitution of North Dakota, requiring the result of the vote upon any measure to be canvassed and declared by the board of canvassers, is mandatory.

4. In view of the requirement that the vote upon any measure shall be canvassed and declared by the board of canvassers, the courts cannot properly be called upon to determine the result of an election in advance of the expiration of a fixed normal period within which such canvass may be had. The canvass of the result of the vote upon a measure, being a step in the completion of the election, must be performed by those in whom the power is vested by the Constitution.

5. In construing the Constitution, it is the duty of the court to give effect to every provision and to reconcile, as far as possible, provisions which are inconsistent with each other.

6. In view of the mandatory requirement in section 25 of the Constitution that the result of the vote upon any measure shall be canvassed and declared by the board of canvassers, and of the further provision that a measure shall become a law when approved by a majority of the votes cast thereon and shall go into effect on the thirtieth day after the election, unless otherwise specified in the measure, the qualifying clause “unless otherwise specified in the measure” must be held to refer to a date subsequent to the thirtieth day, to permit the normal prescribed period to elapse within which the election processes may be completed.

Appeal from District Court. Stutsman County; Fred Jansonius, Judge.

Mandamus proceeding by the State, on the relation of James Morris, as Attorney General of the state of North Dakota, against A. H. Sherman, as Auditor of the county of Stutsman. From an order quashing an alternative writ of mandamus previously issued, plaintiff appeals.

Reversed.

BURR, J., dissenting.James Morris, Atty. Gen. (Scott Cameron, of Bismarck, and P. W. Lanier, of Jamestown, of counsel), for appellant.

Russell D. Chase, State's Atty., and Harry E. Rittgers, both of Jamestown, B. F. Spalding, of Fargo, and Dullam & Young, of Bismarck, for respondent.

Preliminary Statement.

This cause was heard in this court on Wednesday, November 23d. The day following the argument being Thanksgiving Day, no session of the court was held. On Friday, November 25th, it appearing to the court that the exigencies of the case required prompt announcement of the decision, these holdings were announced:

“(1) Under section 25 of the Constitution an initiated measure can not go into effect prior to the thirtieth day after the election at which the same may have been approved by the electors.

(2) Chapter 322, Laws 1923, being section 2189 of the 1925 Supplement to the Compiled Laws of North Dakota 1913 (relating to publication of notice of delinquent real estate tax sales), is still in effect.”

And the following order was entered: “Ordered and Adjudged, that the order of the District Court within and for Stutsman County, appealed from herein, be and the same is hereby reversed and the District Court is directed to enter its peremptory writ as prayed for.”

Thereafter the following opinions were prepared and filed as expressing the views of the court:

PER CURIAM.

This is a proceeding in mandamus to compel the defendant, as auditor, to submit for publication the delinquent tax list for 1932 in accordance with section 2189 of the 1925 Supplement to the Compiled Laws of 1913. After a hearing in district court, an alternative writ of mandamus previously issued was quashed and the plaintiff appeals to this court. The sole question involved in the proceeding and on the appeal is whether or not section 2189 of the 1925 Supplement to the Compiled Laws of 1913, regulating the publication of notice of delinquent tax sale, has been superseded for the year 1932 by an initiated measure which was voted upon at the general election November 8, 1932. The measure thus voted upon prescribes a method for the publication of notice of the delinquent real estate tax sale different from that prescribed by section 2189, and it contains an express repeal of section 2189 and of all other acts and parts of acts in so far as in conflict. The last section of the initiated measure reads as follows: “This act shall take effect and be in force from and after the 8th day of November A. D. 1932 and shall apply to all delinquent tax sales for the year A. D. 1932 and subsequent years.” The question is whether or not this section can be given effect as worded in view of section 25 of the Constitution, which provides, among other things: “And such law shall go into effect on the thirtieth day after the election, unless otherwise specified in the measure.”

The appellant contends that, in view of other expressions in section 25, the qualifying clause “unless otherwise specified in the measure” is only to be applied to effectuate a desire to postpone the taking effect of a measure beyond the thirtieth day and may not in any case shorten the period within which it may take effect to less than thirty days after the election. The respondent, on the other hand, contends that the act takes effect as therein stated.

The section of the Constitution in question governs both the initiative and referendum and covers the procedure with respect thereto quite fully. That it was intended to be so complete as to be operative without the aid of additional legislation is made apparent by the statement in the concluding paragraph that the section shall be self-executing and all its provisions be treated as mandatory. It covers approximately a page and a half in the printed Code, and for the purpose of understanding the contentions on this appeal only such portions of the section need be quoted as bear upon the question of interpretation presented. After providing for submission of measures to the electors and for a vote upon the same at a designated state-wide election, or any special election called by the Governor, it is stated:

“* * * The result of the vote upon any measure shall be canvassed and declared by the board of canvassers.

Any measure, except an emergency measure submitted to the electors of the state, shall become a law when approved by a majority of the votes cast thereon. And such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure.” (It is elsewhere provided that an emergency measure is not suspended by a referendum petition.) * * *

“In (If) conflicting measures initiated by or referred to the electors shall be approved by a majority of the votes cast thereon, the one receiving the highest number of affirmative votes shall become the law.

The word ‘measure’ as used herein shall include any law or amendment thereto, resolution, legislative proposal or enactment of any character.”

The appellant contends that the provision requiring the result of the vote to be canvassed and declared recognizes the necessity for the completion of a canvass as a legislative step before the enactment can be said to have been completed and that, when this requirement is read in light of the declaration that “such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure,” the reason for postponing the going into effect of the law for thirty days becomes apparent and is to enable all the mandatory steps in connection with the election to be taken. In light of this reason, it is argued, the qualification “unless otherwise specified in the measure” means that the law shall go into effect on the thirtieth day unless some date be specified beyond the thirtieth day, the period within that limit being one normally required for the canvass and declaration of the result. And to give it a construction which would enable legislation to take effect within such thirty-day period would be to defeat the manifest intention of this provision of the Constitution.

In support of this construction, modern legislative practice is invoked as showing the prevalence of fixed dates for the taking effect of legislative enactments to the end that normallya period may elapse between the vote of approval of legislation and the time of its taking effect within which the public or a class specially affected may be apprised of the terms of an enactment and be given an opportunity to conform to any new requirement. From this is excepted, of course, emergency legislation by the Legislature which generally is permitted to take effect from approval.

As against these contentions the respondent argues that the qualifying clause “unless otherwise specified in the measure” permits the fixing of any date for a law to take effect following the closing of the polls; that no period need elapse within which the direction to canvass and declare the result may be carried out; and that whether or not a measure has been approved at the polls in any case where it is declared to be effective from the election date is a question of fact of which the court may require proof or of which it may take judicial notice. It is said the mere fact that in a given case there may be difficulty in determining judicially what the result of a state-wide election may have been, and consequent uncertainty as to the law, does not argue strongly against the legal possibility of...