24 N.W.2d 907 | N.D. | 1946
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *3 This is a taxpayers' suit brought by plaintiffs on behalf of themselves and all other taxpayers of the city of Dunseith *5 to enjoin the defendants, the Mayor and members of the city council, from taking any action toward the establishment and maintenance of a municipal liquor store.
The facts are stipulated. The City of Dunseith by a majority vote of its electors at a special election held for that purpose, voted in favor of the establishment of a municipal liquor store. Pursuant to this vote the defendants proposed to establish such a store in the city. This action was then begun. After hearing had the trial court held for the defendants, denied the injunction, and dismissed the action. Judgment was entered accordingly. Whereupon the plaintiffs perfected this appeal.
Plaintiffs contend here, as they did in the trial court, that under the provisions of § 185 of the constitution of North Dakota, hereinafter set forth, the city may not engage in the liquor business. The defendants take issue with this contention. They insist that not only does § 185 authorize a city to engage in any industry, enterprise or business, including the liquor business, but that it is self-executing and without any action on the part of the legislature a city may engage in that business; that even if § 185 be not self-executing the legislature has acted in that behalf and authorized cities to engage in and carry on that business and provided for its licensing and regulation.
Section 185 of the constitution provides: "The state, any county or city may make internal improvements and may engage in any industry, enterprise or business, not prohibited by article 20 of the constitution, but neither the state nor any political subdivision thereof shall otherwise loan or give its credit or make donations to or in aid of any individual, association or corporation except for reasonable "support of the poor, nor subscribe to or become the owner of capital stock in any association or corporation."
As originally adopted § 185 read: "Neither the state nor any county, city, township, town, school district or any other political subdivision shall loan or give its credit or make donations to or in aid of any individual, association or corporation except for necessary support of the poor, nor subscribe to or become the *6 owner of the capital stock of any association or corporation, nor shall the state engage in any work of internal improvement unless authorized by a two-thirds vote of the people."
It was first amended in 1914 by adding thereto: "Provided, that the state may appropriate money in the treasury or to be thereafter raised by taxation for the construction or improvement of public highways."
Thereafter it was amended to its present form by article 32 of the Amendments to the Constitution, approved and ratified at the general election on November 5, 1918.
Article 20 of the constitution provided: "No person, association or corporation shall within this state manufacture for sale or gift, any intoxicating liquors, and no person, association or corporation shall import any of the same for sale or gift, or keep or sell or offer the same for sale, or gift, barter or trade as a beverage. The legislative assembly shall by law prescribe regulations for the enforcement of the provisions of this article and shall thereby provide suitable penalties for the violation thereof." This article was adopted as a part of the original constitution by a separate vote of the people at the time (October 1, 1889) of the adoption of the constitution, as provided by § 20 of the Schedule and Ordinance. It was repealed by constitutional amendment submitted by initiative petition at the general election on November 8, 1932.
The constitution of the state is its paramount law. It is a self-imposed restraint upon the people of the state in the exercise of their governmental sovereign power, either by themselves through the initiative or by their agency, the legislature. See State v. First State Bank,
When the people amended § 185 of the constitution to its present form, they said "The state, any county or city may engage in any industry, enterprise or business not prohibited by Article 20 of the Constitution. . . ." This amendment created a new governmental function — that of engaging in and carrying on commercial and industrial enterprises theretofore considered as private, in competition with private business. The proponents of the amendment and those who voted for its adoption must have believed it was essential to enable the state government to engage in these enterprises, otherwise they would not have proposed and adopted it. See, in this connection, State ex rel. Coleman v. Kelly,
The defendants argue that though the reference in the amendment to Article 20 was particular and specific, the people intended merely that the state and its municipal agencies might not engage in any business that was prohibited by law; that this was done only to avoid a conflict between § 185 in its amended form and Article 20; that there was no intention that should Article 20 subsequently be repealed the exception thus incorporated into § 185 should continue in effect; that therefore when Article 20 was repealed this exception was impliedly repealed and, as a result of the repeal, § 185 must now be read as though there were no reference to Article 20 in it.
On the other hand, the plaintiffs contend that it was the intention of the people when § 185 was thus amended to make sure that the state and its cities and counties might not engage in the business prohibited by Article 20 regardless of whether or not Article 20 remained in effect. Obviously there is room for difference of opinion as to what the people intended by thus amending § 185 and since this uncertainty exists and it is the duty of the court to determine their intention, the court is under the necessity of resorting to the canons of construction in order to do so.
One rule applied in the construction of statutes is that where one statute adopts the particular provisions of another statute by a specific and descriptive reference to the statute or provision adopted the effect is the same as though the statute or provision adopted had been incorporated bodily into the adopting statute. Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute so taken unless it does so by express intent or necessary implication. Hassett v. Welch,
Though it cannot be said that the amendment to § 185 adopts the provisions of Article 20, it does particularly refer to *9 Article 20 and to the business prohibited by Article 20. It thus designates the business which is excluded from the permission given to the state to enter into private business enterprises and we can see no reason why the rule of construction stated above should not be applied in such case to ascertain the intent and purpose of the people when they adopted the amendment. So, applying it in the instant case, we cannot do other than hold that when the people adopted the amendment they intended that the negation therein contained should be absolute and not contingent upon any subsequent modification or repeal of Article 20.
The defendants argue, however, it is so inconsistent to permit private enterprise to engage in the liquor business and, at the same time, to deny that right to the state that it is unreasonable to say the people intended such a result. We can see no merit to this contention, however. There is no inconsistency. No more than there was in denying the state the right to engage in other general business enterprises in competition with private business, as was the case prior to the adoption of the amendment to § 185.
Defendants further contend that all the circumstances before, at the time of, and since the adoption of the amendment to § 185, make plain that the people in adopting it did so only to avoid a conflict between that section as amended and Article 20 and that there was no purpose in them to deny to the state and its agencies the right to enter into the liquor business should Article 20 subsequently be repealed. Defendants in that behalf point to the political, legislative and economic history of the state up to the time of the adoption of the amendment as evidencing their intent in doing so, and to the legislative and popular action since the repeal of Article 20 as evidencing the construction put upon the amendment both by the legislative bodies and the people themselves. Let us see.
In 1918, when the amendment to § 185 was proposed to enable the state to engage in general commercial business, it meant that if adopted the state would undertake an adventure at least novel and untried, if not hazardous. Those who believed the liquor *10
traffic was evil and should be prohibited were zealous and active in support of the prohibitory law. The proponents of the amendment were not advocating that the state engage in the liquor business — in fact, many of them would have been violently opposed to such a proposal. They were concerned with its engaging in other enterprises which they believed would be beneficial to the people of the state and which could not be undertaken without the amendment. There was very great opposition to the amendment. If it were to have the effect of impliedly modifying or repealing Article 20, many advocates of prohibition would most vigorously oppose it even though they believed that the state should be permitted to engage in the other industries. Accordingly, those interested in advancing the cause of the amendment included in it the exception of the business prohibited by Article 20. It is true in 1932 the people of the state, through the initiative, repealed Article 20, but that repeal left in effect all of the statutes outlawing and prohibiting the liquor traffic theretofore enacted pursuant to its mandate. See State v. Ligaarden,
The judgment is reversed and the case is remanded to the district court for disposition in accordance with this opinion.
CHRISTIANSON, Ch. J., and BURKE, MORRIS and BURR, JJ., concur. *12