State ex rel. Wineman v. Dahl
| Decision Date | 08 October 1896 |
| Docket Number | 6731 |
| Citation | 68 N.W. 418,6 N.D. 81 |
| Court | North Dakota Supreme Court |
Mandamus, on the relation of J. B. Wineman, to compel C. M Dahl, secretary of state, to certify to the county auditors of the various counties of the state a joint resolution passed by the legislature, that the question whether a constitutional convention shall be held shall be submitted to the people.
Peremptory writ granted.
Peremptory writ issued.
J. B Wineman and Burke Corbet, for relator.
John F. Cowan, Atty. Gen'l, for respondent.
An alternative writ of mandamus having been issued by this court in the exercise of its original jurisdiction, the defendant appeared and answered the writ. A demurrer having been interposed to such answer, the case presents to us only questions of law. The object of this proceeding is to compel the defendant, as secretary of state, to certify to the county auditor of each county a certain joint resolution adopted at the last session of the legislature. It is in the following words: Section 83 of the constitution declares that the powers and duties of the secretary of state shall be as prescribed by law. One of these duties is to certify to the county auditors propositions or other questions to be submitted to the people. Rev. Codes, § § 491, 509. It is obvious that the body which is vested with power to designate the question to be submitted to the people is the legislature. This proposition is not controverted; nor is it disputed that that body has expressed its will that there should be submitted to the people the question whether a constitutional convention should be called to revise the constitution. But it is insisted that this expression of sovereign will is not in constitutional form, and is therefore without legal effect. That it did not take the form of an ordinary law is too clear for controversy. The joint resolution has no title. Its enacting clause is not couched in the language prescribed by the constitution to be employed in the enactment of ordinary laws; nor was it ever submitted to the governor for approval. Whenever it is necessary that the expression of sovereign will should take the form of ordinary legislation, these requirements must be strictly observed. But, in declaring its purpose that a specific proposition should be submitted to the people for their approval or disapproval, the legislature is not discharging the ordinary function of enacting laws. In cases of this kind it has been the established usage to employ a joint resolution as the mode of expressing sovereign pleasure. There is nothing in our constitution indicating a purpose to abrogate this settled practice. It is a simple and very satisfactory form in which to embody the will of sovereign power; and there is nothing in the nature of such an expression of legislative purpose which renders it necessary that the checks and safeguards which surround ordinary legislation should be applicable in cases of this character. No permanent general rule is thereby established. The whole force of the resolution is spent upon those officers whose duties it is to see that the proposition therein specified is submitted to the people. When they have performed their duty, there is nothing left but a mere recommendation to the people to express their views on the particular question submitted, to the end that the verdict of the public upon that proposition may furnish a guide to future legislative action. It is not the resolution in this case which imposes any duty on the secretary of state. The duty he is required by this court to perform is imposed upon him by a law passed with all the formalities and solemnities essential to a valid enactment. That law declares that he must certify to the county auditors such question or proposition as is to be submitted to the people; and the body which has power to designate the proposition or question to be submitted is, as we have already asserted, the body which inheres sovereignty. By the joint resolution, that body has designated the question to be submitted, and the law prescribes what the secretary of state shall do towards carrying out its legally expressed will.
There is eminent authority for the proposition that it is not necessary that the legislative will that the constitution should be amended should assume the form of an ordinary law and be submitted to the executive for approval. This was held by the Federal Supreme Court in Hollingsworth v. Virginia, 3 Dallas 378. The argument in support of the proposition that the president must approve a proposed amendment to the federal constitution is much stronger than the argument in this case that the governor must approve the action of the legislature in declaring that a particular question shall be submitted to the people. The federal constitution (Art, 1, § 7) provides that "every order, resolution or vote to which the concurrence of the senate and house of representatives may be necessary shall be presented to the president of the United States." etc. Yet, despite this provision of the constitution, the court ruled that the eleventh amendment had been lawfully adopted, although the resolution embodying the amendment had not been submitted to the president for approval. This was in 1794. The amendments which were made in 1789, 1803, and 1866 were carried through without the action of the president. In 1865 the slavery amendments were inadvertently submitted to the executive, and approved by him. On discovering this fact, Senator Trumbull, of Illinois, chairman of the judiciary committee, introduced a resolution declaring its submission to him to have been an inadvertent act, and that his approval was unnecessary and of no effect. The resolution also asserted that that case...
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