State ex rel. Strutz v. Baker
| Decision Date | 25 July 1941 |
| Docket Number | No. 6780.,6780. |
| Citation | 71 N.D. 153,299 N.W. 574 |
| Parties | STATE ex rel. STRUTZ, Atty. Gen., v. BAKER, State Auditor, et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Under the constitution of this state, the people have reserved to themselves the power of initiating legislation and no such measure enacted by a vote of the electors “shall be repealed or amended by the legislature, except upon a yea and nay vote upon roll call of two thirds of all the members elected to each house.” Section 25 of the Constitution as amended.
2. Where the legislature amends and re-enacts such an initiated measure, the “initiative” character of the measure is not destroyed, but remains in force, and any subsequent amendment of the initiated measure or of an amended or re-enacted portion thereof is subject to the constitutional limitation placed upon the legislature.
3. Chapter 195 of the Session Laws of 1941, known as “Motor Vehicle Fuel Tax Act of 1941,” is an attempted amendment of a measure initiated and enacted by the people; and not having received the prescribed two-thirds vote of each house, was not adopted constitutionally, and, therefore, is not a law of this state.
Appeal from District Court, Burleigh County; R. G. McFarland, Judge.
Action by the State of North Dakota, on the relation of Alvin C. Strutz, as Attorney General of the State of North Dakota, against Berta E. Baker, State Auditor of the State of North Dakota, and John Gray, State Tax Commissioner of the State of North Dakota, to have the Motor Vehicle Fuel Tax Act declared void and to enjoin the State Tax Commissioner from interfering in any way with the work of the State Auditor. From an adverse judgment, John Gray, State Tax Commissioner of the State of North Dakota, appeals.
Judgment affirmed.
Alvin C. Strutz, Atty. Gen., and P. O. Sathre, Asst. Atty. Gen. (Clifford Jansonius, Asst. Atty. Gen., on the brief), for plaintiff and respondent.
T. A. Thompson and Geo. F. Shafer, both of Bismarck, for defendant and appellant.
The “Motor Vehicle Fuel Tax Act”, known as chapter 195 of the Session Laws of 1941, is entitled: “An Act Transferring the administration of the Motor Vehicle Fuel Tax Laws and the collection of Motor Vehicle Fuel Taxes from the State Auditor to the State Tax Commissioner, together with the administration of licensing Sellers and Buyers of tax exempt Motor Vehicle Fuel and the granting of refunds of Motor Vehicle Fuel Taxes as provided by the Initiated Measure of June 30, 1926, with amendments thereto, and Chapter 147, Laws of 1939 and Chapter 170, Laws of 1939, pertaining to Motor Vehicle Fuel Taxes, and transferring all the rights, powers and duties now placed in the State Auditor and the State Auditor's Department under the laws to the State Tax Commissioner, together with the files, records, equipment and supplies pertaining thereto, and repealing all Acts and parts of Acts in conflict therewith.”
The measure received a majority of the votes in each house of the legislature, and was signed by the governor, but it did not receive the vote “of two thirds of all the members elected to each house.” An action was brought to have the law declared null and void and the state tax commissioner enjoined from interfering in any way with the work of the state auditor.
The district court held that the purported act had not received the requisite constitutional vote to insure its adoption, and the commissioner was permanently “restrained and enjoined from assuming or taking jurisdiction of or over any rights, power and duties possessed by the State Auditor and the State Auditor's Department under the initiated measure of June 30th, 1926, or amendments lawfully enacted thereto, relating to motor vehicle fuel tax law”.
Judgment was entered accordingly, and the commissioner appeals.
A measure, known as the “Gasoline Tax Measure”, the title of which prescribes: Laws 1927, p. 547, was initiated, and approved by the people at the election held June 30, 1926.
This measure consists of ten sections. Section 1 is devoted to the definition of the terms, “Motor vehicles”, “Motor vehicle fuels”, and “Dealer”.
Section 2 requires every dealer in motor vehicle fuel to “render to the State Auditor, on forms prescribed, prepared, and furnished by the State Auditor, a sworn statement of the number of gallons of motor vehicle fuel sold or used by him * * * during the preceding calendar month * * *.”
It requires him to “pay a license tax of two cents per gallon on all motor vehicle fuel used and sold by him * * *”.
Section 3 permits such dealer to charge and collect this license tax “as a part of the selling price”.
Section 4 requires such dealers to “file a duly acknowledged certificate with the State Auditor, on forms prescribed, prepared and furnished by the said State Auditor”, showing the name under which he transacts business and the place or places of business.
Section 5 specifies when this license tax shall be paid to the state auditor and makes provision for the state auditor's turning over the money to the state treasurer to be credited to the state highway commission and appropriated and used by the commission for the highways under its jurisdiction.
Section 6 makes provision for the reimbursement to purchasers by the state auditor of the sums paid by them for motor vehicle fuel furnished for certain purposes and provides the method of making reimbursement.
Section 7 requires the records of all such dealers to be open for “inspection by the State Auditor or by any agent or employee thereof duly authorized by him”.
Section 8 makes it unlawful for any person to accept from any dealer in the original package any such motor vehicle fuel without having the invoice delivered, and requires all purchasers of motor vehicle fuel “in the original package in which the same shall have been imported” to pay to the state auditor the tax provided in the Act in case the dealer has not made payment.
Section 9 makes general provision for penalties for violating any provisions of the Act.
Section 10 is merely the usual repealing clause attached to statutes.
This Act was initiated under the provisions of section 25 of the Constitution of this state, as amended by what is known as article 26 of the amendments. This section of the Constitution prescribes that:
“The word ‘measure’ as used herein shall include any law or amendment thereto * * * or enactment of any character. * * *
No measures enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except upon a yea and nay vote upon roll call of two thirds of all the members elected to each house.”
Legislation by “Initiation” is a power which the people have reserved to themselves under the provisions of our Constitution. It is subject to the constitutional provisions provided for the enactment of legislation. See Preckel et al. v. Byrne, etc., 62 N.D. 356, 361, 243 N.W. 823, 825.
[1] The people legislate through their agent known as the legislature, or may legislate as prescribed by this section 25 of the Constitution as amended. When the people legislate by their agent, the legislature has the power to amend and repeal its own acts when in its judgment it sees fit; but with reference to initiated measures, this power of the legislature is limited partially. Such initiated measure may not be repealed or amended “except upon a yea and nay vote upon roll call of two thirds of all the members elected to each house”. See State ex rel. Truax et al. v. Smart et al., 48 N.D. 326, 184 N.W. 623;Boutrous et al. v. Thoresen et al., 54 N.D. 289, 209 N.W. 558.
The history of the legislation dealing with this initiated measure shows that from time to time several amendments were made. Chapter 178 of the Session Laws of 1927 purported “To Amend and Re-enact Section 5 of the Initiated Measure”, but did not in any way affect the duties of the auditor, and still required that officer to receipt for the license tax, pay the money over to the state treasurer to be credited to the state highway commission for the construction and maintenance of the highways under its jurisdiction. This amendment received the requisite two-thirds vote. The effect of “re-enactment” and its scope is well set forth in Jessee v. De Shong et al., Tex.Civ.App., 105 S.W. 1011, 1015. Re-enactment continues the law in force. There may be some changes, but the law is the same law, so far as law is concerned.
Chapter 166 of the Session Laws of 1929 is “An Act to amend and re-enact Sections 2, 3, 4, 5 and 6 of the initiated measure”.
Certain amendments were made in these sections dealing with the duties of the dealer in motor vehicle fuel, requiring him to be the holder of a license issued by the state auditor, providing for the revocation of the license, furnishing of a bond, and such matters, as well as the increase of the tax from two cents per gallon to three cents. This amendment also made some changes with reference to the method of the state treasurer in crediting the amount of money received and in the method of reimbursement to the ones who paid tax on motor vehicle fuel when the same fuel was to be used for certain specific purposes. The purpose and principle of the initiated measure in placing the administration in the hands of the auditor remained unchanged in any particular. This chapter 166 of the laws of 1929 received the requisite two-thirds vote of the members elected in each house.
In 1931, Laws 1931, p. 580, the legislature amended and re-enacted sections 2, 3, and 5 of the initiated measure, but the proposed amendment...
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State ex rel. Dahl v. Dewing, 8190
...two-thirds vote of all the members elected, it still retains its initiative character under the majority opinion in State ex rel. Strutz v. Baker, 71 N.D. 153, 299 N.W. 574. 'A statute amended does not lose its identity. It is still the statute. The initiated measure being amended constitut......