State ex rel. Twichell v. Hall

• Decision Date: 05 October 1918
• Docket Number: 1915
• Court: North Dakota Supreme Court

171 N.W. 213

44 N.D. 459

STATE OF NORTH DAKOTA EX REL. TREADWELL TWICHELL, and Treadwell Twichell, Individually, Plaintiffs, v. THOMAS HALL, Secretary of State, and Thomas Hall, Individually, Defendants

No. 1915

Supreme Court of North Dakota

October 5, 1918

Application to the Supreme Court of the State of North Dakota for the issuance by it of an original writ of injunction.

Application for the issuance of such writ denied.

Application for injunction denied and proceeding dismissed.

Engerud Divet, Holts & Frame, for plaintiffs.

William Langer, Attorney General, and H. A. Bronson, Assistant Attorney General, for defendants.

GRACE J., BIRDZELL, J. ROBINSON, J., concurring. BRUCE, Ch. J CHRISTIANSON, J. (dissenting).

OPINION

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 § 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 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 16th 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 § 202. The first way set forth in the 16th Amendment is identical with that contained in § 202 of the original Constitution. The second way provided by the 16th 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."

The plaintiff challenges the legality of the adoption of the 16th 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 § 2 of our Constitution which is as follows:

"All political power in 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 § 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 birth-right 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 demonstrate the unconstitutionality of the 16th Amendment. If he fail in them, he must fail in all minor questions which may, to some extent, have some relevancy to the subjects under consideration. The first main reason upon which plaintiff relies to establish the unconstitutionality of the 16th Amendment is, that the amendment is not entered on the house journal properly by reason of not having been spread at length thereon, and was entered on the house journal only by means of its number or title as an identifying reference. It is conceded the journal shows the aye and nay vote required by the Constitution. The second main reason relied upon the establish the unconstitutionality of the 16th Amendment is that the same is not self-executing, in that, it is claimed, that resort to the legislature must be had to give it effect. We will analyze each of these in the order above set forth.

Directing our attention to the first, we find that § 202 of the Constitution requires that the proposed amendment "shall be entered on the journal of the house." The 16th Amendment was entered on the house journal by an identifying reference and the aye and nay vote taken thereon. The plaintiff claims this is not sufficient but that the proposed amendment must be spread at length upon the house journal. In some states it is held the full text of the proposed amendment must be entered on the journal, while, in others the proposed amendment is sufficiently entered in the journal if it contains identifying reference such as the title, number, etc. It is conceded that the 16th Amendment was entered in the house journal by an identifying reference only, and that the aye and nay vote was taken and entered on the journal as required by the Constitution. Is it not sufficient entry, under article 202 of the Constitution of North Dakota, to enter the proposed constitutional amendment on the house journal by an identifying reference such as the title and number? Counsel for the plaintiff contends...