C. Warner LITTEN, Paul R. Abrahamson, William Balck, and Dale O. Anderson, Plaintiffs and Appellees, v. The CITY OF FARGO, Jon Lindgren, Gib Bromenschenkel, Sid Cichy, Donna Chalimonczyk, and Roy Pedersen, in their official capacity as members of the Board of City Commissioners of the City of Fargo; Frank Fahrlander, in his official capacity as City Auditor of the City of Fargo; Duane Hoehn, in his official capacity as County Auditor for Cass County, North Dakota, Defendants, and John Camp, Intervenor, and Jacque Stockman, Intervenor Defendant and Appellant.
Civ. No. 9747
Supreme Court of North Dakota.
June 20, 1980.
The second ground raised by Marshall in support of his motion for a change of venue is that the convenience of witnesses and the ends of justice would be promoted by the change. A review of the record and affidavits offered in support thereof is unpersuasive.
The burden of proof imposed upon the moving party obligates Marshall to affirmatively establish facts which warrant a change of venue. This burden requires a showing that both the convenience of witnesses and the ends of justice would be promoted by such a change. American State Bank of Dickinson v. Hoffelt, 246 N.W.2d 484, 486 (N.D.1976). Although the convenience of Marshall‘s medical experts is a proper factor for the trial court‘s consideration, the convenience of medical experts should not be given undue weight and consideration to the exclusion and subordination of all other material witnesses. We have also held that parties themselves are not ordinarily considered witnesses in an application for a change of venue on the ground of convenience of witnesses. American State Bank of Dickinson v. Hoffelt, 246 N.W.2d at 487; Hovland v. Waller, 98 N.W.2d 893 (N.D.1959); Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926 (1928). Nevertheless, we recognize that there are exceptions to this rule. See Annot., 74 A.L.R.2d 16, 89-99 (1960).
The affidavits and memorandum brief submitted to the district court in support of the motion for a change of venue do not set forth with requisite specificity the facts necessary to show exceptional circumstances which would justify a change of venue from Golden Valley County to another county in the state. We recognize that Marshall‘s quadriplegic condition will present some problems no matter where the trial is held. The record before us, although it discloses his needs for special care, does not indicate that he cannot receive that care while being transferred to Beach or while there for the trial.
We encourage the district court to allow liberal voir dire examination in order to disclose the existence of any prejudice or bias on the part of potential jurors. If the voir dire examination of potential jurors reveals the impossibility of empaneling a fair and impartial jury, Marshall may renew his motion for a change of venue at that time. See Basin Elec. Power Co-op v. Boschker, 289 N.W.2d at 559-60.
We do not believe the district court abused its discretion in denying the motion for a change of venue. The order of the district court is affirmed.
VANDE WALLE, PEDERSON, PAULSON and SAND, JJ., concur.
Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiffs and appellees; argued by H. Patrick Weir, Fargo.
Lashkowitz Law Offices, Fargo, for intervenor defendant and appellant Jacque Stockman; argued by Herschel Lashkowitz, Fargo.
Intervenor Jacque Stockman appealed from a Cass County district court order dated 22 Oct 1979 enjoining the City from
Petitions to change the form of the city government of Fargo, a home rule city, were filed with the city auditor on or about 4 and 5 Oct 1979.
An action was instituted to enjoin the city from holding an election on the proposition set forth in the petitions. After a hearing, the district court found that the petitions and procedures were not in accordance with the laws pertaining thereto and issued an order enjoining the City from conducting an election for a change of government.
The principle issues are: May a home rule city, independent of the general laws relating to cities, select its own form of government and decree its own procedure for changing the form of government, and if so, were the appropriate statutory procedures met by the city of Fargo, or is the city limited in its selection to the procedures and forms of government set out by the legislature?
The parties stipulated to the following pertinent facts:
“8.
“The City of Fargo adopted a Home Rule Charter pursuant to a City election held in 1970.
“9.
“The City of Fargo presently operates under the commission form of government.
“10.
“On October 4 and 5, 1979, Intervenor John Camp filed certain petitions with Defendant Frank Fahrlander. Said petitions asked for a change in the form of city government for the City of Fargo and contained the following language:
‘A PETITION TO ESTABLISH REPRESENTATIVE MUNICIPAL GOVERNMENT IN THE CITY OF FARGO
We the undersigned qualified electors of the City of Fargo request that the following change in the form of government question be submitted to the voters of Fargo at the next city-wide election, as provided in Article 12 of the Home Rule Charter of the City of Fargo:
Change from Commission to Council System of Government
Shall the City of Fargo change from its organization under the commission system of government and become a city under the council form of government with eleven members?’
“11.
“The petitions were drafted to meet the requirements of Article 12 of the Limited Home Rule Charter of the City of Fargo. Said Article provides as follows:
‘Article 12-Changing the Form of Government
Changes in the form of government may be proposed by motion of the Governing Body or may be proposed by petitions bearing the signatures of qualified City electors equal in number to at least fifteen per cent of the entire vote cast for executive officer of the City at the preceding regular City Election in which said executive officer was subject to election. Proposals for changing the form of government shall be voted upon at the next City-wide election, provided at least thirty days has lapsed after the motion of the Governing Body or the filing of petitions with the City Auditor.’
“12.
“The petitions were discussed at the regular meeting of the Fargo City Commission on Monday, October 8, 1979. As a result of a record roll-call vote, the question presented on the fact of the petitions was to be placed to a vote of the
city electorate on November 6, 1979, at the same time a county-wide mill levy increase was scheduled.”
Herschel Lashkowitz, attorney for the appealing intervenor presented an elaborate historical background on the development of the home rule constitutional and statutory provisions.
In 1966 the electorate approved an amendment to
“Except in the case of home rule cities and villages as provided in this section the legislative assembly shall provide by general law for the organization of municipal corporations, restricting their powers as to levying taxes and assessments, borrowing money, and contracting debts. Money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law.
“The legislative assembly shall provide by law for the establishment of home rule cities and villages. It may authorize such cities and villages to exercise all or a portion of any power or function which the legislative assembly has power to devolve upon a nonhome rule charter and which is not denied to such city or village by its own home rule charter and which is not denied to all home rule cities and villages by statute. The legislative assembly shall not be restricted in granting of home rule powers to home rule cities and villages by section 183 of the constitution.”
The North Dakota Legislature in 1969 enacted Ch. 371, which has now been codified as
“From and after the filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this chapter, such city, and the citizens thereof, shall, if included in the charter and implemented through ordinances, have the following powers set out in this chapter: [underscoring supplied]
. . . . .
“4. To provide for city officers, agencies, and employees, their selection, terms, powers, duties, qualifications and compensation.
. . . . .”
Stockman, the intervenor-appellant, contended that
In support of this contention, he cites a part of
“. . . Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of the city any law of the state in conflict therewith, and shall be liberally construed for such purposes. . . .” [Underscoring supplied.]
In City of Fargo v. Fahrlander, 199 N.W.2d 30 (N.D.1972), the court paraphrased this section without further comment.
We are convinced the court, by paraphrasing the statutory provisions of
In City of Fargo, Cass County v. Harwood Township, 256 N.W.2d 694 (N.D.1977), we basically concluded that a city, whether home rule or otherwise, has no inherent power except as expressly granted or necessarily implied from the grant by the Legislature and without such grant it has no more right than any other corporation to condemn property. This statement generally applies to any activity of the city. The power and authority of a city must be found either in a constitutional or statutory provision.
We conclude that the supersession provision set out in
It is not sufficient merely to examine the subsections of
“The statutes of the state of North Dakota, so far as applicable, shall continue to apply to home rule cities, except insofar as superseded by the charters of such cities or by ordinance passed pursuant to such charters.”
We have taken judicial notice of and examined the charter filed in the Secretary of State‘s office by the City of Fargo. The first unnumbered paragraph of Article 3, entitled Powers of City, provides as follows:
“The City shall have all powers granted to municipal corporations by the constitution and laws of this state and by this charter, together with all implied powers necessary to carry into execution all powers granted.
“Among its enumerated powers, which may be implemented by ordinance subject to limitations specified in this charter, shall be the following:”
We also find that Article 3 of the charter generally tracks the language and powers found in subsections 1 through 15 in
Except for Article 12 which has been quoted earlier herein, the limited home rule charter of the City of Fargo contains no provision relating specifically to “changing the form of government.”
We have examined the ordinance code of the city of Fargo, entitled Fargo Revised Ordinances of 1965, together with the 1974 pocket supplement, and we find that the only reference to change in form of government is in § 1-01-06 entitled “Change in Form of Government—omitted” with the notation: “Note: This former section related to change from the ‘city manager’ to ‘commission’ form of government.” The 1974 supplement does not indicate any change to this section.
Neither party has called to our attention any city ordinance which provides for a change of form of government and our research does not disclose that the city of Fargo has adopted an ordinance setting forth either the procedures to be followed in changing the city form of government or the forms of government that may be used by the city of Fargo.
However, Ch. 4, relating to officers and duties in the ordinances of the city of Fargo, spells out the duties generally for the commissioners of the city and the various city officers and specifies whether they shall be appointed or elected. We have not found any ordinance which could be considered as implementing
It was contended and argued by the intervenor-appellant that the city of Fargo had the authority to change its form of government to any form it desired by virtue of
If subsections (4) and (6) of
Keeping this principle in mind, we examine other statutory provisions that have a bearing upon our interpretation and construction of the pertinent provisions of law [subsections (4) and (6)].
The legislature, in
“In this title, unless the context or subject matter otherwise requires:
. . . . .
“2. ‘Governing body’ shall mean the city council or the board of city commissioners, as the case may be, of a municipality concerned or affected;
“3. ‘Executive officer’ shall mean the mayor in council cities or the president of the board of city commissioners in commission cities;”
The foregoing definitions apply to
We cannot overlook the fact that the legislature by statute provided for the various forms of government a city may have and the procedures to be followed in changing the form of government. A change from council to commission form is found in
The legislature obviously was aware of the detailed procedure required to accomplish an orderly change of government. It also realized the necessity for specifics of each form of government that a city may have, and accordingly enacted appropriate legislation (
This lack of information is precisely what is missing under the proposal (petition) in question and would be missing even if the delegation charter and ordinance requirements discussed earlier herein would have been met. Significantly, the eleven-man council form of government under the statutory provisions only applies to a modern council form of government and is not available to an ordinary council form of government.
To permit a city to submit to the electorate a change of government, and if approved, later determine what shall comprise such government and set up the details for electing, assigning duties, and other related items for the officers of the governing body, would be like asking the people to buy a pig in a poke.
In our view, to permit a conclusion that an ordinance supersedes a state law, providing the charter and implementing ordinance requirements have been met, it is not only essential that the power given to the city by the legislature is clearly expressed or necessarily implied from the grant but also that it conflicts with the laws generally applicable to cities.
For the reasons discussed earlier herein we conclude that the legislature did not intend, and the statutory provisions do not give, home rule cities the authority to select any form of government it may desire. Our conclusion is supported and evidenced by the lack of an orderly procedure to be followed in the change of government and the absence of clear or necessary implied authority under
The judgment of the trial court is affirmed. Costs assessed to neither party.
ERICKSTAD, C. J., and PAULSON and PEDERSON, JJ., concur.
VANDE WALLE, Justice, concurring specially.
I concur in the result and much of what Justice Sand has written concerning this matter. I agree that before a city may exercise particular home-rule authority that authority must have been granted to home-rule cities by the Legislature. Although I
Despite this possible interpretation of
Perhaps because there are no ordinances implementing the charter provision for a change in the form of government the proposal in the petitions was inexact and indefinite. It provided no time frame within which the change in the form of government was to be implemented. It contained no provision as to the method of selection of the aldermen, i. e., at large or by wards; it contained no provision as to whether or not there was to be a mayor or, if there was to be a mayor, how that officer was to be selected. Although we were told at oral argument these details could be prescribed by ordinance if the electorate approved the change in form of government, I cannot agree with that concept for two reasons: First, the electors are entitled to know the details of what they are asked to approve or reject before the election—not after the fact. Second, to leave to the present city government the responsibility of specifying the details of the change in the form of government can only lead to further legal actions to determine whether or not the governing body has acted in accord with the dictates of the electorate as to time and manner of changing the form of city government. The issue proposed is just too indefinite to inform the electorate of the city of the changes in form of government which are proposed.