State ex rel. Olson v. Langer, 6288.

• Decision Date: 28 September 1934
• Docket Number: No. 6288.,6288.
• Parties: STATE ex rel. OLSON v. LANGER.
• Court: North Dakota Supreme Court

65 N.D. 68

256 N.W. 377

STATE ex rel.OLSON

v.LANGER.

No. 6288.

Supreme Court of North Dakota.

Sept. 19, 1934.

Dissenting Opinion Sept. 28, 1934.

Syllabus by the Court.

1. Under the provisions of article 14, §§ 194-201, of the Constitution of North Dakota, the Governor is “liable to impeachment for habitual drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office, but judgment in such cases shall not extend further than removal from office and disqualification to hold any office of trust or profit under the state.” Section 196. The House of Representatives has the sole power of impeachment, and all impeachments must be tried by the Senate.

2. Section 72 of the Constitution expressly provides: “In case of the death, impeachment, resignation, failure to qualify, absence from the state, removal from office, or the disability of the governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted or the disability be removed, shall devolve upon the lieutenant governor.”

3. Section 73 of the Constitution provides that: “No person shall be eligible to the office of governor * * * unless he be a citizen of the United States and a qualified elector of the state. * * *”

4. Under section 85 of the Constitution of this state, “the judicial power of the state of North Dakota” is vested in the supreme and other courts.

5. An inquiry into the question whether a disability of the Governor exists under the provisions of section 72 of the Constitution is not an invasion of the rights and powers of the Legislature and does not contemplate removal of the governor or his impeachment. It is merely the exercise of a judicial function to determine whether such disability exists as to devolve the powers and duties of the office upon the Lieutenant Governor until the disability shall be removed.

6. The Supreme Court of this state has, under the provisions of section 87 of the Constitution, power to issue writs of quo warranto and to exercise original jurisdiction in those cases where the questions involved are such as require that this be done.

Held, that in the instant case the questions involved are of such nature and importance as require the exercise of original jurisdiction.

7. Under section 21 of the Constitution, “the provisions of this constitution are mandatory and prohibitory unless, by express words, they are declared to be otherwise.”

8. A disability, within the meaning of that term as used in section 72 of the Constitution, is any cause, whether mental, physical, or legal, which operates to disqualify the Governor to perform the duties of his office.

9. Under section 73 of the Constitution providing that “no person shall be eligible to the office of governor * * * unless he be a citizen of the United States and a qualified elector of the state, * * *” such eligibility must exist, not only when a Governor enters upon the duties of his office, but also during all the time he is exercising the powers and performing the duties thereof.

10. Ceasing to possess the qualifications of an elector constitutes a disability within the meaning of that term as used in section 72 of the Constitution, and, upon this event happening to the incumbent of the office of Governor, the powers and duties of the office devolve upon the Lieutenant Governor for the residue of the term for which the Governor shall have been elected or until the disability be removed.

11. The term “qualified elector of the state,” as used in section 73 of the Constitution, is identical in meaning with the term “person * * * qualified to vote at any election,” as used in section 127 of the Constitution, as amended.

12. A person who has been convicted of felony and whose civil rights have not been restored is not a qualified elector of the state, though he possess every other qualification essential to that status.

13. A felony within the meaning of that term as used in section 127 of the Constitution is a crime which is or may be punishable with death or imprisonment in the penitentiary.

14. Participation in the elective franchise is a privilege rather than a right, and the state may deny this privilege to its citizens by reason of their having been convicted of crime.

15. The denial of the right to participate in the elective franchise by reason of conviction of felony is not a penalty; it is a consequence which flows from the acts charged and proved of which the judgment of conviction is conclusive evidence.

16. A person has been “convicted of felony” within the meaning of that term as used in section 127 of the Constitution, as amended, when he is indicted and tried in the District Court of the United States for the District of North Dakota upon a charge specified by the laws of the United States to be a felony, is found guilty, and upon such verdict sentence is imposed and judgment is entered by the court that he be imprisoned in the penitentiary.

17. The fact that an appeal from such judgment and sentence has been taken to the Circuit Court of Appeals of the United States does not change the status of the judgment, though it may suspend its execution.

18. The contention of respondent that he is deprived of constitutional rights guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States is considered, and it is held, for reasons stated in the opinion, that the instant case is governed by the self-executing provisions in the state Constitution cited and construed, and the Fifth and Fourteenth Amendments to the Constitution of the United States are not involved.

Original proceeding by the State, on the relation of Ole H. Olson, for a writ of quo warranto requiring William Langer to show by what right he continues to exercise the powers and duties of the office of Governor of North Dakota.

Writ granted.

MOELLRING, J., dissenting.

H. G. Fuller, of Fargo, for petitioner.

P. O. Sathre, Atty. Gen., and J. A. Heder, Asst. Atty. Gen. (H. A. Bronson, of Grand Forks, and Francis Murphy, of Fargo, of counsel), for respondent.

Usher L. Burdick, of Bismarck, amicus curiæ.

BURKE, Judge.

The petitioner, invoking the original jurisdiction of this court, petitions for a writ of quo warranto requiring the respondent to show by what right he continues to exercise the powers and duties of the office of Governor of this state. Such petition is based upon the contention that the respondent has been convicted of a felony. All the pleadings, briefs, arguments, and oral statements in court show that the determinative facts are not in dispute.

On November 4, 1932, the respondent was duly elected Governor of this state for the term of two years, commencing in January, 1933. At the same time the petitioner was duly elected to the office of Lieutenant Governor for a similar term, and the respondent and the petitioner qualified respectively for the office to which he was elected. On May 10, 1934 indictment was returned in the United States District Court for the District of North Dakota against the respondent, William Langer, and others, charging the said defendants had willfully and unlawfully and feloniously combined, conspired, confederated, and agreed together to defraud the United States of America by corruptly administering certain acts of Congress, to wit:

The Act of Congress approved July 21, 1932 (47 Stat. 709), entitled “An Act To relieve destitution, to broaden the lending powers of the Reconstruction Finance Corporation, and to create employment by providing for and expediting a public-works program,” commonly known as the “Emergency Relief and Construction Act of 1932.” The Act of Congress approved May 12, 1933 (15 USCA § 721 et seq.), entitled “An Act To provide for cooperation by the Federal Government with the several States and Territories and the District of Columbia in relieving the hardship and suffering caused by unemployment, and for other purposes,” commonly known as the “Federal Emergency Relief Act of 1933.” The Act of Congress of June 16, 1933 (48 Stat. 195), entitled “An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,” commonly known as the “National Industrial Recovery Act.”

The statutory offense of which respondent was convicted is defined in section 5440, U. S. Rev. St., section 37, Criminal Code, section 88, 18 USCA, which reads: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.”

The respondent was convicted under this statute on the 16th day of June, 1934, and on June 29, 1934, was sentenced to imprisonment for one year and six months in the federal penitentiary and fined $10,000. Judgment of conviction and sentence were duly entered in the records of the federal court in and for the district of North Dakota. The execution of said judgment and sentence has been stayed by said court pending appeal to the United States Circuit Court of Appeals of the Eighth Circuit, and defendant is at liberty under supersedeas bond, but the verdict of guilty and the judgment of conviction as entered have not been vacated or set aside.

The petitioner filed his official oath and made demand upon the respondent to turn the office of Governor over to him. This demand was refused. Thereupon he applied to the Attorney General to institute a proceeding in quo warranto to determine who was entitled to the office. On the refusal of the Attorney General to do this, petitioner began the instant proceeding. His contention is that, because of the conviction in the federal court, the respondent is under such constitutional disability that he is disqualified to...