State ex rel. Twichell v. Hall

• Decision Date: 20 February 1919
• Citation: 171 N.W. 213,44 N.D. 459
• Parties: STATE ex rel. TWICHELL v. HALL, Secretary of State.
• Court: North Dakota Supreme Court

44 N.D. 459

171 N.W. 213

STATE ex rel.TWICHELL

v.HALL, Secretary of State.

Supreme Court of North Dakota.

Oct. 5, 1918.

Dissenting Opinion, Jan. 28, 1919.

Addenda, Feb. 20, 1919.

Syllabus by the Court.

Under section 202 of the Constitution, requiring a proposed amendment to the Constitution to be entered on the journal of the house with the yeas and nays taken thereon, such entry is sufficient if it refer to the proposed amendment by an identifying reference, such as the title and number of a bill containing the resolution, accompanied by the entry of the yea and nay vote.

Where a practice has been uniformly followed by the Legislature for more than 20 years, which carries out the spirit of a constitutional requirement, such a legislative construction is entitled to weight in construing the Constitution.

The Sixteenth Amendment is examined, and held to be self-executing.The rights to be enjoyed are fully set forth therein, and steps necessary to be taken to effect the enjoyment thereof are contained therein.

The publication of a proposed constitutional amendment in pursuance of the provisions of chapter 41,Compiled Laws 1913, constitutes and is a legal and sufficient “publication” thereof.

Under the Sixteenth Amendment, when a petition has been signed by 25 per cent. of the voters in not less than one-half of the counties of the state, proposing an amendment to the Constitution with reference to any subject-matter, such petition is sufficient, and the Legislature has no power or authority to increase the minimum percentage required.If the legislative assembly should enact such a law, it would obviously be in conflict with the percentage requirement of the Sixteenth Amendment.

In construing a constitutional amendment adopted in the manner prescribed by section 202 of the Constitution, great weight should attach to the fact that it was proposed to and passed by two successive legislative assemblies, and was thereafter properly and legally submitted to and ratified by a majority of the electors at a general election.

Where a petition for a proposed constitutional amendment has been properly and legally signed and prepared as required by the Constitution, and filed with the secretary of state, it is his executive duty to proceed with the same as required by section 979,Compiled Laws 1913, and he should not be restrained or interfered with in the performance of his duties.

Application by the State of North Dakota, on relation of Treadwell Twichell, and Treadwell Twichell, individually, for the issuance of its original writ of injunction against Thomas Hall, Secretary of State, and Thomas Hall, individually.Application denied.

Bruce, C. J., and Christianson, J., dissenting.

Engerud, Divet, Holt & Frame, of Fargo, for plaintiffs.

William Langer, Atty. Gen., and H. A. Bronson, Asst. Atty. Gen., for defendants.

GRACE, J.

This is an order to show cause, issued by the Supreme Court upon the application of plaintiff and directed to the defendant, commanding the defendant to show cause before the Supreme Court why the prerogative writ of injunction should not issue from this court, restraining the defendant from publishing certain proposed constitutional amendments, or from taking any further action with reference to submitting such proposed constitutional amendments to a vote of the electors of this state at the general election to be held in November, 1918.There is involved in this proceeding the interpretation of section 202 of our Constitution as originally adopted therein, and also the interpretation of said section as amended.Section 202, as originally adopted in the Constitution, provided the manner in which the Constitution may be amended.Such section reads thus:

“Any amendment or amendments to this Constitution may be proposed in either house of the legislative assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice, and if in the legislative assembly so next chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislative assembly to submit such proposed amendment or amendments to the people in such manner and at such time as the legislative assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislative assembly voting thereon, such amendment or amendments shall become a part of the Constitution of this state.If two or more amendments shall be submitted at the same time they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.”

In the manner prescribed by the above section, proceedings were had to amend the above section.Such proceedings are the Sixteenth Amendment to the Constitution, which provides two ways in which the Constitution may be amended, instead of one, as was formerly provided by the original section 202.The first way set forth in the Sixteenth Amendment is identical with that contained in section 202 of the original Constitution.The second way provided by the Sixteenth Amendment is as follows:

“Any amendment or amendments to this Constitution may also be proposed by the people by the filing with the secretary of state, at least six months previous to a general election, of an initiative petition containing the signatures of at least twenty-five per cent. of the legal voters in each of not less than one-half of the counties of the state.When such petition has been properly filed the proposed amendment or amendments shall be published as the Legislature may provide, for three months previous to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election.Should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such general election, such amendment or amendments shall be referred to the next legislative assembly; and should such proposed amendment or amendments be agreed upon by a majority of all the members elected to each house, such amendment or amendments shall become a part of the Constitution of this state.Should any amendment or amendments proposed by initiative petition and receiving a majority of all the votes cast at the general election as herein provided, but failing to receive approval by the following legislative assembly to which it has been referred, such amendment or amendments shall again be submitted to the people at the next general election for their approval or rejection as at the previous general election.Should such amendment or amendments receive a majority of all the legal votes cast at such succeeding general election such amendment or amendments at once become a part of the Constitution of this state.Any amendment or amendments proposed by initiative petition and failing of adoption, as herein provided, shall not be again considered until the expiration of six years.”

[1][2]The plaintiff challenges the legality of the adoption of the Sixteenth Amendment, maintaining, in short, it had never been legally adopted, and therefore is ineffective as an amendment to the Constitution, and is inoperative.We will give thorough consideration and analysis to each objection to the legality of Amendment 16, and incidentally Amendment 15, relative to the power of the people to initiate laws.Before doing so, we wish to direct attention to section 2 of our Constitution, which is as follows:

“All political power is inherent in the people.Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”

The words of section 2 have the deepest significance; the words have such a profound meaning, and are such a lucid revealment of the place where political power is lodged for the benefit of the people, as should make a vivid impression on the minds of all.Each generation of people inherit this great and far-reaching political power from the preceding generation.As an inheriting generation, it is part of their birthright to receive such power; to protect it with all their intelligence; to preserve it; to enjoy it, and hand it down to the future generation, to posterity, unimpaired.In this connection it would be well for all who, for a time, are invested with authority and commissioned by the will of the people to exercise for the people and for their benefit some of the inherent power of the people, to comprehend that all such persons, so briefly commissioned with such authority, are but the agents and instrumentalities selected by the people to perform certain duties for the people.In this sense, Governors of states, Legislatures, and courts, and each and every other person engaged in performing a public duty prescribed by the people, is, at all times, the agent only of the people, to exercise for the people such delegated political power as the people, in their sovereign capacity, may determine shall be exercised by such agents or any of them.All political power being in the people, they may delegate what powers they deem best; they may also repossess themselves, wholly or partially, of a delegated power by a consent of the majority of all the people, in whom is inherent all political power, such consent to be expressed in the manner provided by law.

The plaintiff assigns and relies upon two distinct and separate reasons, either of which, it is contended, is sufficient to...