State ex rel. Riedman v. Baillie
| Decision Date | 29 November 1932 |
| Docket Number | 6121 |
| Citation | 245 N.W. 466,62 N.D. 705 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Barnes County, McFarland J.
Affirmed.
Fred J Fredrickson and D. S. Ritchie, for appellant.
Roy A Ployhar, State's Attorney, for respondent.
Sad & Duffy, amicus curiae.
On the 29th day of September, 1932, a petition for a special election to recall Fred J. Aandahl, member of the state senate of the Thirty-Eighth legislative district of the state of North Dakota, was filed in the office of the county auditor of Barnes county, North Dakota. A temporary order, restraining the county auditor from calling such election, was issued and an order to show cause why such restraining order should not be made permanent, was heard on the 21st day of October, 1932. After hearing, the temporary injunction was dissolved, the writ denied and from such order, the petitioner appeals.
It is agreed that the recall petition was signed by electors sufficient in number, but two hundred and sixty-four of the signers did not participate in the election for the office of governor in said legislative district in November, 1930.
It is the contention of the appellant that the electors, who signed the petition and who did not vote for the office of governor at the general election in said district in November, 1930, were not qualified to sign the petition and with their names deducted from the total number of signers the petition is insufficient.
Respondent admits, that if the two hundred sixty-four electors who did not participate in the preceding election for the office of governor were not qualified to sign the petition, the petition would be insufficient, but claims, that since all the signers on the petition were qualified electors in said district at the time they signed the petition, that the petition is sufficient. This involves a construction of Article 33 of the Amendments to the Constitution of North Dakota, which reads as follows:
The constitutional provisions relating to the initiative, referendum and recall should be liberally construed and the power thereby reserved to the people should not be interfered with by the courts except upon a clear showing that the law has been violated. Laam v. McLaren, 28 Cal.App. 632, 153 P. 985; Hilliker v. Seal Beach, 91 Cal.App. 521, 267 P. 367; Brown v. Hawthorne, 103 Cal.App. 113, 284 P. 254.
As appellant contends, article 33 does provide that "such petition shall be signed by at least thirty per cent of the qualified electors who voted at the preceding election for the office of governor in the state, county or district from which such officer is to be removed." If this provision of the Article stood alone there would be merit in appellant's contention, but it does not stand alone and it must be considered with the first sentence of the article namely, "The qualified electors of the state or of any county, or of any congressional, judicial or legislative district may petition for the recall (of) any elective congressional, state, county, judicial or legislative officer by filing a petition with the officer with whom the petition for nomination to such office in the primary election is filed, demanding the recall of such officer." This sentence of the Article says specifically that the qualified electors of any...
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