Wood v. Byrne

• Decision Date: 25 September 1930
• Citation: 232 N.W. 303,60 N.D. 1
• Court: North Dakota Supreme Court

232 N.W. 303

60 N.D. 1

HOWARD WOOD, et al., Petitioners, v. ROBERT J. BYRNE, Secretary of State, Respondent

Supreme Court of North Dakota

September 25, 1930

Original Application for Writ of Mandamus.

Denied.

Lemke & Weaver, for petitioners.

James Morris, Attorney General, for respondent.

Burke Ch. J. Burr, Nuessle and Christianson, JJ., concur. Birdzell J. (concurring specially).

OPINION

BURKE

On July 7, 1930, a petition with 20,755 signatures for the repeal of article 20 of the constitution of the State of North Dakota was presented to the secretary of state for filing. Thereafter, and on the 10th day of July 1930, the secretary of state after a full consideration of the sufficiency of said petition mailed to Honorable Howard Wood chairman of the committee of petitioners the following letter:

"An examination of initiative petitions for the repeal of article 20 of our state constitution relating to prohibition, containing 20,873 signatures, shows same to be defective;

"1. 479 copies containing in excess of 14,800 signatures of the total number of 611 separate copies making up original petition, do not bear the affidavit for verification of signatures and signer required by chapter 135, Sess. Laws, 1925.

"2. 60 copies with approximately 5,300 signatures of the total number of 611 separate copies comprising original petition, except a few isolated signatures, do not show the date of signing required by chapter 135, Sess. Laws 1925.

"3. The following statements appearing below text of constitutional amendment

"Against Prohibition for Repeal

"For Prohibition against Repeal

"cannot be considered a part of the petition and shown on ballot for the reason that such statement is contrary to section 959, Supp. Comp. Laws 1913 (chapter 133, Sess. Laws 1925). The latter requires ballot to show:

"YES

"NO

"4. 11 copies with 484 signatures cover different subject matter.

"In view of the seriousness of the mentioned defects we can do nothing else than to find the petition in question insufficient to permit submission of the constitutional amendment at the coming general election."

On receipt of the foregoing statement, the committee for petitioners, petitioned this court for a writ of mandamus, directing the secretary of state to file the said petition and to place the measure so initiated upon the ballot and submit the same to the electors at the next general election. The secretary of state answered, setting forth copy of his letter of July 10th to the committee. An examination of the petition offered for filing, shows, that 88 copies with 5,536 signatures were accompanied with affidavits for each copy; 453 copies with 12,644 names were covered by one blanket affidavit sworn to on information and belief, stating that the affiant procured the circulation of the copies of said petition, but did not circulate them himself. Fifty-two copies of the petition with 1,845 names bore no date, and there were 18 copies of a memorial to congress with 734 names.

The petitioners claim that, "The only question before this court is the constitutionality of § 1104A1, Supp. to 1913 Comp. Laws (chap. 135, Sess. Laws 1925) which is claimed to be in violation of § 25, art. 2, and § 202 of article 15 of the constitution." Under § 202 of article 15 amendments to the constitution may be proposed by an initiative petition signed by 20,000 electors and filed with the secretary of state 120 days prior to the election at which they are to be voted for, and any amendment "so proposed shall be submitted to the electors and shall become a part of the Constitution if a majority of the votes cast thereon are affirmative. All provisions of the constitution relating to the submission and adoption of measures by initiative petition and on referendum petition, shall apply to the submission and adoption of amendments to the constitution of the state." Under this section an amendment to the constitution may be submitted or initiated the same as any legislation under the initiative and referendum clause of the constitution. That portion of § 25 of the constitution relating to the initiative and referendum is very comprehensive. It reserves the power to initiate and refer. It states the number of electors who may initiate legislation. It provides that the provision shall contain the full text of the measure; that it shall be filed with the secretary of state submitted by ballot at any state wide election designated by the petition or special election called by the governor, and provides for the canvassing of the vote. It states what vote is necessary, and when the measure shall become a law. It distinguishes between a general and special election. It provides, that no law shall be enacted limiting the number of copies, all copies becoming a part of the original petition when filed or attached. It states what shall be printed upon the ballot and provides for a committee of the petitioners which represents and acts for them. It provides for the publication by the state of all measures, and the mailing of the same to each elector in a publicity pamphlet containing a copy of each measure. It prescribes a form for the enacting clause of all measures, and makes the general election laws of the state applicable thereto.

As counsel for petitioners contend, by the adoption of this section it is apparently intended to place the power in the hands of the people to initiate legislation without unreasonable burdens. This is further shown by the provision, viz.: "This section shall be self-executing and all of its provisions shall be treated as mandatory. Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people."

The law which petitioners claim, violates the foregoing provisions of the constitution is chapter 135, Sess. Laws 1925. It is entitled, "An Act To Safeguard the Initiative, Referendum and Recall Provisions of the Constitution by Prohibiting Illegal and Fraudulent Signatures to Petitions, Prescribing Form and Manner of Signing and Penalties for Violations." This law was no doubt enacted in accordance with the invitation in section 25 of the constitution, viz., "Laws may be enacted to facilitate its operation, but no law shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people." It is clear then, that if chapter 135, Sess. Laws of 1925, only facilitates the operation of § 25 of the constitution then, it is constitutional. On the other hand, if it hampers, restricts or impairs the exercise of the rights of the people in any way to initiate legislation it is void. It is clear from the title of the act that it is intended to regulate the circulation of petitions for all initiative and referendum legislation to prevent fraud and to enable the secretary of state to pass upon, and determine the sufficiency of the petitions. Section 25 of the constitution confers upon the secretary of state the power to determine the sufficiency of the petition as follows: "The secretary of state shall pass upon each petition, and if he finds it insufficient he shall notify the 'committee for the petitioners' and allow twenty days for correction or amendment. All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court." Independent of any statute, the constitution requires the secretary of state to exercise some discretion in determining the sufficiency of any petition, which must be reasonable and is subject to review in the supreme court.

Section 1 of the act provides, that, "no person shall sign any initiative, referendum or recall petition . . . unless he is a qualified elector." This provision does not hamper hinder or restrict in any way, but it facilitates for, as a matter of course, a person who is not a voter should not sign a petition calling for an election. "No person shall sign any such petition more than once." This provision also facilitates by preventing a fraud. "Each signer shall add his residence, post-office address, and date of signing." This is a wise provision intended to facilitate by preventing fraud. In fact, counsel for petitioners concedes that the first four subdivisions of section one of the act are reasonable and not in conflict with any part of the constitution. His claim is, that the vice in the act is in the last subdivision, viz., "Each copy of any such petition before being filed must have attached thereto an affidavit to the effect that each signature to the paper appended is the genuine signature of the person whose name it purports to be, and that each such person is a qualified...