State, Relation of Morris v. Sherman
| Decision Date | 13 December 1932 |
| Docket Number | 6126 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Stutsman County Jansonius, J.
Reversed.
James Morris, Attorney General (Scott Cameron and P. W. Lanier, of counsel), for appellant.
Russell D. Chase, State's Attorney, Harry E. Rittgers B. F. Spalding and Dullam & Young, for respondent.
This cause was heard in this court on Wednesday, November 23rd. The day following the argument being Thanksgiving Day, no session of the court was held. On Friday November 25th, it appearing to the court that the exigencies of the case required prompt announcement of the decision, these holdings were announced:
And the following order was entered:
"Ordered and Adjudged, that the order of the District Court within and for Stutsman County, appealed from herein, be and the same is hereby reversed and the District Court is directed to enter its peremptory writ as prayed for."
Thereafter the following opinions were prepared and filed as expressing the views of the court:
This is a proceeding in mandamus to compel the defendant, as auditor, to submit for publication the delinquent tax list for 1932 in accordance with § 2189 of the 1925 Supplement to the Compiled Laws of 1913. After a hearing in district court an alternative writ of mandamus previously issued was quashed and the plaintiff appeals to this court. The sole question involved in the proceeding and on the appeal is whether or not § 2189 of the 1925 Supplement to the Compiled Laws of 1913, regulating the publication of notice of delinquent tax sale, has been superseded for the year 1932 by an initiated measure which was voted upon at the general election November 8, 1932. The measure thus voted upon prescribes a method for the publication of notice of the delinquent real estate tax sale different from that prescribed by § 2189, and it contains an express repeal of § 2189 and of all other acts and parts of acts in so far as in conflict. The last section of the initiated measure reads as follows: "This act shall take effect and be in force from and after the 8th day of November A.D. 1932 and shall apply to all delinquent tax sales for the year A.D. 1932 and subsequent years." The question is whether or not this section can be given effect as worded in view of § 25 of the Constitution, which provides, among other things, "And such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure."
The appellant contends that, in view of other expressions in § 25, the qualifying clause "unless otherwise specified in the measure" is only to be applied to effectuate a desire to postpone the taking effect of a measure beyond the 30th day and may not in any case shorten the period within which it may take effect to less than thirty days after the election. The respondent, on the other hand, contends that the act takes effect as therein stated.
The section of the Constitution in question governs both the initiative and referendum and covers the procedure with respect thereto quite fully. That it was intended to be so complete as to be operative without the aid of additional legislation, is made apparent by the statement in the concluding paragraph that the section shall be self-executing and all its provisions be treated as mandatory. It covers approximately a page and a half in the printed code, and for the purpose of understanding the contentions on this appeal only such portions of the section need be quoted as bear upon the question of interpretation presented. After providing for submission of measures to the electors and for a vote upon the same at a designated statewide election, or any special election called by the governor, it is stated:
(It is elsewhere provided that an emergency measure is not suspended by a referendum petition.)
The appellant contends that the provision requiring the result of the vote to be canvassed and declared recognizes the necessity for the completion of a canvass as a legislative step before the enactment can be said to have been completed and that when this requirement is read in light of the declaration that "such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure," the reason for postponing the going into effect of the law for 30 days becomes apparent and is to enable all the mandatory steps in connection with the election to be taken. In light of this reason, it is argued, the qualification "unless otherwise specified in the measure" means that the law shall go into effect on the 30th day unless some date be specified beyond the 30th day, the period within that limit being one normally required for the canvass and declaration of the result. And to give it a construction which would enable legislation to take effect within such thirty-day period would be to defeat the manifest intention of this provision of the Constitution.
In support of this construction, modern legislative practice is invoked as showing the prevalence of fixed dates for the taking effect of legislative enactments to the end that normally a period may elapse between the vote of approval of legislation and the time of its taking effect within which the public or a class specially affected may be apprised of the terms of an enactment and be given an opportunity to conform to any new requirement. From this is excepted, of course, emergency legislation by the legislature which generally is permitted to take effect from approval.
As against these contentions the respondent argues that the qualifying clause "unless otherwise specified in the measure" permits the fixing of any date for a law to take effect following the closing of the polls; that no period need elapse within which the direction to canvass and declare the result may be carried out; and that whether or not a measure has been approved at the polls in any case where it is declared to be effective from the election date is a question of fact of which the court may require proof or of which it may take judicial notice. It is said the mere fact that in a given case there may be difficulty in determining judicially what the result of a state-wide election may have been, and consequent uncertainty as to the law, does not argue strongly against the legal possibility of putting an initiated measure in effect from the date of election, because situations frequently arise where persons are held to the terms of a law with which they have had little or no opportunity to become familiar.
In resolving the question before us, we must not be unmindful that we are construing the fundamental law of the state. It is the source to which we must look for the governing rules with respect to the matters upon which it speaks. Every expression relating to such matters must be assumed to have been used deliberately. We must look to the entire section to determine the purpose manifested by the people in adopting it and to its various provisions in order to give the utmost effect to the means prescribed for making that purpose effective. We must not assume that any prescribed procedure is merely formal or of no substantial moment, especially if it may operate in harmony with the dominant purpose and conduce to its ordered enjoyment. Here, the dominant purpose manifested throughout the section is that of securing and safeguarding the right of the electors to legislate. We must avoid a construction contrary to this dominant purpose, but we must give effect, if possible, to every provision designed to facilitate its orderly operation. We must place to one side the thought that in the particular case there may be no doubt of the result of the election in advance of the canvass of votes; for whatever rule the Constitution lays down with respect to the time when a measure submitted to the electors may take effect is applicable of course, whether the measure carries by one vote or by one hundred thousand. If it prescribes a rule with respect to the former situation, it must, of course, be followed with respect to the latter.
The contentions of the respondent are to the effect that the Constitution lays down no rule governing the time when measures may go into effect, except one that is applicable where no time is fixed in the measure. Under these...
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