State, Relation of Gammons v. Shafer
| Decision Date | 10 February 1933 |
| Docket Number | 6135 |
| Court | North Dakota Supreme Court |
Application in the District Court of Burleigh County McFarland, J., for a peremptory writ of mandamus denied. Plaintiff appeals.
Reversed.
Scott Cameron, for appellant.
Legislation adopted under the initiative and referendum provisions cannot be taken per se as an amendment to the Constitution as to render inapplicable to such legislation the requirements of existing constitutional provisions. Wallace v Zinman, 200 Cal. 585, 354 P. 946, 62 A.L.R. 1341; State ex rel. Gibson v. Richardson, 48 Or. 309, 8 L.R.A. (N.S.) 362, 85 P. 225; Galvin v. Contra Costa County, 195 Cal. 686, 235 P. 450.
What constitutes an amendment is defined in 25 R.C.L. 905.
The purpose of § 64, N.D. State Constitution, is clearly enough that of preventing an amendment to an existing statute by means of a legislative bill which contains merely the amendatory words or a reference only to the title of the act sought to be amended and does not give in full the text of the act as it will appear when amended. State v. Fargo Bottling Works Co. 19 N.D. 396; Re Buelo, 98 F. 86; Bodenoch v. Chicago, 222 Ill. 71, 78 N.E. 31; People v. Knopf, 183 Ill. 410, 56 N.E. 155. See also State v. Nomland, 3 N.D. 427, 57 N.W. 85; Richards v. Stark County, 8 N.D. 392, 79 N.W. 863; Power v. Kitching, 10 N.D. 254, 86 N.W. 737; Malin v. Lamoure County, 27 N.D. 140, 145 N.W. 582; State ex rel. Gaulke v. Turner, 37 N.D. 635, 164 N.W. 924; 54 N.J.L. 36, 22 A. 1091; State v. Ritt, 76 Minn. 532, 79 N.W. 535; Schieffelin v. McLaughlin, 215 N.W. 209.
To arbitrarily fix the compensation of a state employee according to the compensation paid to the head of the department under which he works without regard to the kind of services rendered is to provide a class distinction that is arbitrary and capricious. Chicago, M. & St. P. R. v. Westby, 178 F. 619; State ex rel. Dorval v. Hamilton, 20 N.D. 592, 129 N.W. 916; N.P.R. Co. v. Barnes, 2 N.D. 310, 51 N.W. 386.
Where a statute is so uncertain that its meaning cannot be determined by known rules of construction, it is inoperative and void, nor can court supply a meaning not deductible from the act. Re De Torio, 8 F.2d 279.
In order to be valid a law must be complete at the time of its passage. North v. Board of Education, 145 N.E. 158; Ex parte Gordon, 232 S.W. 520; Small Co. v. American Sugar Ref. Co. 267 U.S. 233; Tillotson v. Frohmiller, 271 P. 867; Mayhew v. Nelson, 346 Ill. 381, 178 N.E. 921.
Arthur J. Gronna, Attorney General, Charles A. Verret, Assistant Attorney General, and B. F. Spalding, Special Assistant Attorney General, for respondents.
The constitution does not intend that every law which would affect some previous statute of variant provisions on the same subject should set out the statute or statutes so affected, at full length. Ex parte Pollard (Ala.), 40 A.L.R. 98.
Constitutional prohibitions of the character herein involved have often been discussed by the courts, and it appears that they have never, in construction, been given a rigid effect, but have been held applicable only to such statutes as come within their terms, when construed according to the spirit of such restrictions, and in the light of the evils to be suppressed. Re Lee (Okla.) 168 P. 53, L.R.A.1918B, 144.
Character of an act, either amendatory or complete in itself, is to be determined by comparison of its provisions with prior laws left in force, and, if complete on the subject with which it deals, it is not subject to constitutional objection of an amendment by reference. Nelson v. Hoffman (Ill.) 145 N.E. 688.
An enactment may contain any provision which is germane to the subject expressed in the title. Lang v. Com. (Ky.) 226 S.W. 381.
Germane as applied to an enactment means in close relationship, appropriate, relevant, pertinent. Hale v. Belgrade Co. (Mont.) 240 P. 371.
The requirements of section 61 of our Constitution are satisfied if the subject of legislation be fairly expressed in general terms and if all of the provisions in the act are fairly germane to that subject and consistent with the avowed purpose. Thompson Yards v. Kingsley, 54 N.D. 49, 208 N.W. 909.
No law will be declared unconstitutional on account of the defect pointed out in the title, unless it is clearly so. The title will be liberally construed, and not in a strict or technical manner. If the provisions of the act are germane to the expressions of the title, the law will be upheld. Mandan City v. Nichols, 62 N.D. 322, 243 N.W. 740; State v. Steen, 60 N.D. 627, 236 N.W. 250; State ex rel. Kol v. North Dakota Children's Home Soc., 10 N.D. 493, 88 N.W. 273; Eaton v. Guarantee Co. 11 N.D. 79; Cooley, Const. Lim., p. 170.
The constitutional requirement of uniformity is complied with when the law uniformly operates upon all persons brought within the relations and system provided by it. Abbott v. Commissioners (Ga.) 129 S.E. 38.
Uniformity does not mean universality. Cooper v. Rollins, 110 S.E. 726, 20 A.L.R. 1105; People v. Vickroy (Ill.) 107 N.E. 638.
Legislation should not be held unconstitutional on the ground of uncertainty if it is susceptible of any reasonable construction that will support and give it effect. Tillotson v. Frohmiller (Ariz.) 271 P. 867; 25 R.C.L. 810; Stone v. Farmers Loan Co. 29 L. ed. 638; Bohn Mfg. Co. v. Jamesen (Minn.) 1 L.R.A. 177; State v. Livingston Concrete Bldg. Co. (Mont.) 87 P. 980; Common Council v. Rush (Mich.) 10 L.R.A. 171.
Whenever the provision of a statute is general, everything which is necessary to make such provision effectual is supplied by the common law and by implication. 25 R.C.L. 979; Lewis's Sutherland, Stat. Const., § 504; 26 Am. & Eng. Enc. Law, 2d ed., 614; Rivanna Nav. Co. v. Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S.E. 194, 61 L.R.A. 129, 99 Am. St. Rep. 855.
The grant of a specific power or the imposition of a definite duty confers by implication authority to do whatever is necessary to execute the power or perform the duty. 36 Cyc. 1113.
This is an appeal from an order quashing an alternative writ of mandamus issued to the Auditing Board and denying the application of petitioner for a peremptory and permanent writ requiring the State Auditing Board to audit and allow the certified claim of appellant for his salary for the month of December, 1932, in the amount for which the same was certified and presented. Appellant claims that under the Session Laws of 1923 his salary was fixed in the sum of $ 2,800 per year, payable monthly in the sum of $ 233.34.
Appellant claims that section 2 of the initiated measure, purporting to reduce salaries of government officials and employees, submitted to and voted for by a majority of the qualified electors of the state in November, 1932, is unconstitutional and that he is entitled to his salary as provided by the laws of 1923.
$@"We, the undersigned, qualified electors of the State of North Dakota, consisting of over ten thousand of the electors at large, hereby propose and initiate the following law, and we request that the same be placed upon the ballot in the manner and form provided by law and submitted to the qualified electors of the State of North Dakota for their approval or rejection at the general election to be held November 8, 1932. $!
$@"As such petitioners we hereby present and propose the following ballot title under which such law shall be submitted, to-wit:
"Reducing and Fixing the Salaries or Compensation of Certain Elected State Officials, and Reducing and Fixing the Salaries or Compensation of all Appointive State Officials, Members of all State Appointive Boards, Bureaus and Commissions Provided for by Law, and Reducing and Fixing the Salaries or Compensaton of all Deputies, Assistants, Secretaries, Clerks and Employees of all State Officials, Boards, Bureaus and Commissions. $!
$@"An Act reducing and fixing the salaries or compensation of the Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Superintendent of Public Instruction, Commissioner of Insurance, Commissioner of Agriculture and Labor and each Commissioner of Railroads to be elected at the general election to be held November 8, 1932, and all subsequent elections, and reducing and fixing the salaries or compensation of all appointive state officials and members of all appointive state board,...
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