State ex rel. Sanstead v. Freed

• Decision Date: 21 February 1977
• Docket Number: No. 9308,9308
• Citation: 251 N.W.2d 898
• Parties: STATE of North Dakota ex rel. Wayne G. SANSTEAD, Relator and Petitioner, v. Senator Howard A. FREED, President Pro Tem of the North Dakota Senate, et al., Respondents. Civ.
• Court: North Dakota Supreme Court

Page 898

251 N.W.2d 898

STATE of North Dakota ex rel. Wayne G. SANSTEAD, Relator and Petitioner, v.Senator Howard A. FREED, PresidentPro Tem of the North Dakota Senate, et al., Respondents.

Civ. No. 9308.

Supreme Court of North Dakota.

Feb. 21, 1977.

Syllabus by the Court

For the reasons stated herein, Senate Rule 26 of the 45th Legislative Assembly, as it applies to the final disposition of a "bill", a resolution proposing amendments to the State Constitution, and resolutions proposing or ratifying amendments to the United States Constitution is constitutional but such Senate Rule 26 is unconstitutional as it relates to a tie-breaking vote by the Lieutenant Governor on the final disposition of other "resolutions".

Lee W. Fraase and Charles Tighe, Bismarck, for petitioner.Also present, Senior Law Student Paul Fraase.

Senator Howard A. Freed, President Pro Tempore, and Senator David E. Nething, Majority Floor Leader, of the North Dakota Senate, for respondents.Also present, Senior Law Student Carl Flagstad.

PAULSON, Judge.

The instant proceeding is a Petition for Original Prerogative Writ under § 86 of the North Dakota Constitution, seeking an order from this Court prohibiting the North Dakota Senate of the 45th Legislative Assembly from conducting its affairs and proceedings under Senate Rules 26and55 as the same presently exist and requiring the North Dakota Senate to amend Senate Rules 26and55"consistent with the decision of this Court".This Court issued an Order for Hearing on January 12, 1977, in which we requested that the parties address the question of this Court's jurisdiction as well as the merits of the petition.The matter was heard on January 28, 1977.

The Petitioner, Lieutenant Governor Wayne G. Sanstead, instituted the instant proceeding in response to action taken by the North Dakota Senate on December 9, 1976, on the third day of the Senate's organizational and orientation session wherein Senate Rules 26and55 were amended.

Before amendment, Senate Rule 26 read:

"26.VOTE BY PRESIDENT

"The President shall vote only in case of a tie (SeeRule 55)."(Senate and House Rules and Committees of the 44th Legislative Assembly ofN.D., p. 13-S.R.(1975).)

Senate Rule 26 was amended to read:

"26.VOTE BY PRESIDENT

"The President shall vote only in case of a tie with respect to a procedural question.The President shall not vote on final disposition of any measure (SeeRule 55)."(Senate and House Rules and Committees of the 45th Legislative Assembly ofN.D., p. 14-S.R.(1977).)

Before amendment, Senate Rule 55 read:

"55.FINAL PASSAGE

"No bill shall become a law except by a vote of the majority of the members-elect of each House, nor unless on its final passage, the vote be taken by ayes and nays and the names of those voting be entered in the journal; provided, however, that no measure enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except by a two-thirds vote upon roll call of all members elected to each House.Ratification of amendments to the Constitution of the United States shall be by concurrent resolution approved by a majority, upon roll call vote, of the members elected to each House."(Senate and House Rules and Committees, 44th Legislative Assembly ofN.D., p. 27-S.R.(1975).)

Senate Rule 55 was amended to read:

"55.FINAL PASSAGE

"No bill shall become a law except by a vote of the majority of the senators-elect and of the members-elect of the House of Representatives, nor unless on its final passage, the vote taken by ayes and nays and the names of those voting be entered in the journal; provided, however, that no measure enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except by a two-thirds vote upon roll call of all members elected to each House.Ratification of amendments to the Constitution of the United States shall be by concurrent resolution approved by a majority, upon roll call vote, of the members elected to each House."(Senate and House Rules and Committees, 45th Legislative Assembly ofN.D., p. 29-S.R.(1977).)

Lieutenant Governor Sanstead contends that the amendments to the Rules of the North Dakota Senate of the 45th Legislative Assembly violate and contravene § 77 of the North Dakota Constitution, which provides, in pertinent part:

"Section 77.The powers and duties of the lieutenant governor shall be to serve as president of the Senate, but he shall have no vote unless they be equally divided. . . ."

In answering for the Senate, State SenatorHoward A. Freed, President Pro Tempore of the North Dakota Senate, and State Senator David E. Nething, Majority Floor Leader of the North Dakota Senate, contend that Senate Rules 26and55 of the 45th Legislative Assembly, as amended, are not only constitutional, but are mandated by § 65 of the North Dakota Constitution, which provides:

"Section 65.No bill shall become a law except by a vote of a majority of all the members-elect in each house, nor unless, on its final passage, the vote be taken by yeas and nays, and the names of those voting be entered on the journal."

I.JURISDICTION

Lieutenant Governor Sanstead asks that this Court exercise its original jurisdiction under § 86 of the North Dakota Constitution and issue an Original Prerogative Writ.Only the apparent conflict between Senate Rules 26and55, as amended, and § 77 of the North Dakota Constitution is alleged since the amendment of Senate Rules 26and55 there had been no tie vote in the North Dakota Senate on any measure where the Lieutenant Governor had attempted to cast a tie-breaking vote; nor had there been such a tie vote when, in compliance with the said amended Rules, the Lieutenant Governor had abstained from voting as of the time of oral arguments before this Court.

This Court has long held that proceedings before this Court must involve an actual controversy of a justiciable character, between parties having adverse interests, and that we may not decide abstract legal questions or render purely advisory opinions.Section 94, N.D.Const.;State ex rel. Olsness v. McCarthy, 53 N.D. 609, 207 N.W. 436, 437(1926);Langer v. State, 69 N.D. 129, 284 N.W. 238, 251(1939);andState ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355, 358(1945).In State ex rel. Olsness v. McCarthy, supra207 N.W. at 437, this Court said:

"The question is merely an abstract one, and arises solely because there is a disagreement between two officers as to what rule of law shall apply when an actual transaction does arise.As we viewthe case, this court is asked to deliver an advisory opinion.This we may not do.The courts of this state are authorized only to determine questions of law as they arise in actual controversies, and may not properly decide abstract legal questions or render purely advisory opinions."

In Langer, supra284 N.W. at 250, this Court, quoting Judge Cardozo in Self-Insurers' Association et al. v. State Industrial Commission(In re Workmen's Comp. Fund), 224 N.Y. 13, 16, 119 N.E. 1027, 1028(1918), stated:

" 'The function of the courts is to determine controversies between litigants.(Citation of authorities.)They do not give advisory opinions.The giving of such opinions is not the exercise of the judicial function.* * * In the United States no such duty attaches to the judicial office in the absence of express provision of the Constitution.* * * In this state the Legislature is without power to charge the courts with the performance of nonjudicial duties.' "

As was pointed out during the North Dakota Constitutional Debates of 1889, at which Convention a proposed "advisory opinion" clause for our Constitution was considered and rejected:

". . . we will have in this State an officer designated as the Attorney General, whose peculiar business it will be to advise the State officers and the Legislature when called upon. . . . the Attorney General is the officer to advise the civil officers, and when questions come before the Supreme Court, that court is then untrammeled."Proceedings and Debates of the First Constitutional Convention of North Dakota(1889), pp. 230-231.

Thus, before this Court can find jurisdiction, we must determine that we would be performing more than an advisory function as was carried out by the Attorney General on February 19, 1945, and by the Attorney General on February 18, 1975, in their opinions on this subject.

We find the facts of the instant proceeding do constitute a justiciable controversy.The Lieutenant Governor instituted the present proceedings to challenge the restraint placed by the State Senate of the 45th Legislative Assembly upon his office as President of the Senate.Such controversy needs no further factual development for our analysis.There is a present and existing conflict between the Attorney General's opinion of February 18, 1975, that a lieutenant governor may cast the deciding vote on the final passage of a bill in the Senate ¹ and the present Senate Rules 26and55, which were amended during the December 1976 organizational session of the 45th Legislative Assembly by the Senate and adopted, as amended, which Rules prohibit the Lieutenant Governor from voting except on procedural matters.The question is no longer abstract and becomes one of reality with the adoption of the amended Senate Rules 26and55.² To require that the Lieutenant Governor actually attempt to cast a tie-breaking vote on the final passage of a bill in open and direct defiance of such Senate Rules would be absurd such action could conceivably result in the removal of the Lieutenant Governor from the Chair in the Senate and in forcing the State Senate to hold the Lieutenant Governor in contempt of the State Senate thus creating in the upper House of our Legislature the chaos and confusion our system of government is designed to prevent.

We find the instant proceeding appropriate for the exercise of this...