Robert P. McCARNEY, on behalf of the Committee for the Petitioners, Petitioner, v. Ben MEIER, as Secretary of State of the State of North Dakota, Respondent.
Civ. No. 9679.
Supreme Court of North Dakota.
Dec. 12, 1979.
286 N.W.2d 780
“Such cooperation, however, is implied and certainly can be exercised in as far as the general powers granted the city cover the matters upon which cooperation is desired.”
This is not to say that the law on housing authorities creates any new or independent powers on the part of municipal corporations. Cooperation agreements still must be limited to the performance of functions falling within the framework of the powers already possessed by the municipality under other statutes. Fradet v. City of Southwest Fargo, 79 N.D. 799, 59 N.W.2d 871 (N.D.1953). But, as we stated previously, the granting of options and the transferring of real property are general powers already possessed by the City.
The City was cooperating with the WCHA by making property available for use in building low-cost housing for the elderly. The resolution in question even stated that the City undertook and agreed with the WCHA to convey the property to the developer. This was a sale to a private corporation not only for its benefit but also for the benefit of all Walsh County residents. Furthermore,
We hold that the City did not exceed its authority when it adopted Resolution No. 666, providing for an option, which was later exercised, on the sale of the second parcel. We therefore affirm the judgment of the district court.
ERICKSTAD, C. J., and PEDERSON, PAULSON and SAND, JJ., concur.
Allen I. Olson, Atty. Gen., and Murray G. Sagsveen, Sol., Bismarck, for respondent; argued by Murray G. Sagsveen, Sol., Bismarck.
PEDERSON, Justice.
This is an original proceeding under
As required by
| Month Day Year | NAME OF ELECTOR | RESIDENCE (Identify by Street No., Twp., or Precinct) | P.O. ADDRESS CITY—STATE |
|---|---|---|---|
| 3/24/79 | JOHN DOE (SAMPLE) | Hay Creek Twp., Burleigh Co. | Bowman, N.D. |
| 1 | |||
| 2 |
At the time McCarney filed the petitions in Meier‘s office on July 8, 1979, they bore 13,270 signatures, 914 more than were required to refer the measure. None of the signatures has been found to be invalid, but 1,150 were rejected because of incomplete addresses. The remaining signatures accepted by Meier were insufficient under
Meier returned the petitions to McCarney on July 23, 1979, “for correction or amendment” as provided in Section 6, of Section 1,1 of
Meier instructed McCarney that each petition that required correction must be returned to the same person who circulated that petition so that the circulator could have each signer, whose address needed to be completed, write in his or her complete address. McCarney did not comply with Meier‘s instructions but re-filed the petitions on August 8, 1979, after the committee had inserted house numbers and street addresses, by the use of directories, for the signers who had failed to do so.
When no further attempt was made to “correct” the petitions in the manner suggested by Meier, on August 24, 1979, McCarney was informed that the petitions were rejected and the referral would not be placed on the ballot. McCarney petitioned this court for review.
Scope of Review Under Article 105
Section 6 of
“All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. . . . If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it.”
Section 7 of
“All decisions of the secretary of state in the petition process are subject to review by the supreme court in the exercise of original jurisdiction.”
Under the principle of separation of powers, courts do not substitute their judgment for that of an executive officer who has exercised a discretionary function. See Appeal of Johnson, 173 N.W.2d 475 (N.D.1970). That has no application, however, to ministerial acts.
In State v. Hanna, 31 N.D. 570, 154 N.W. 704 (1915), the issue raised was whether or not the secretary of state‘s action in filing and canvassing referendum petitions pursuant to § 25 of the Constitution2 was discretionary, and whether or not his decision was conclusive on this court. This court found that his decision was not conclusive and, in holding that the duties fixed by § 25 are ministerial, said:
“That a question of law may arise, as here, upon the sufficiency of the petition vests no discretion in said official in acting under it.” 154 N.W. at 705.
There is authority for the proposition that the placing of a proposal on the ballot by the secretary of state is a ministerial, not a quasi-judicial, act. State ex rel. Williams v. Brown, 52 Ohio St. 2d 13, 6 Ohio Cas. 3d 79, 368 N.E.2d 838 (1977). See also, 42 Am.Jur.2d, Initiative and Referendum, § 47.
We are not bound by the secretary of state‘s interpretation of the Constitution, and the “abuse of discretion” standard has no application here.
It has been suggested that, in effect, Meier‘s determination is a proceeding against the petition and thus the “burden of proof” is upon him pursuant to the provision in Section 6 of
Canons of Constitutional Construction
Principles of construction applicable to statutes are generally available to construction of the Constitution. The court must give effect and meaning to every provision and reconcile, if possible, apparently inconsistent provisions. State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977). It is the duty of the court to discover and give effect to the intention of the people without doing violence to the words employed. State v. Amerada Petroleum Corp., 78 N.D. 247, 49 N.W.2d 14 (1951). All rules of construction are subservient to this duty to ascertain and give effect to the intent and purpose of the framers and the people who adopted the Constitution. Newman v. Hjelle, 133 N.W.2d 549 (N.D.1965). Expediency has no application nor does public clamor, majority desire, or apparent need. State v. Olson, 44 N.D. 614, 176 N.W. 528, 534 (1920).
Historical Background
Originally, neither § 25 nor § 202 reserved to the people any power to initiate or refer legislative measures or to initiate constitutional amendments. In 1914 amendments were made to both of these sections so that these powers were acquired by the people (
“All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”
Justice Grace, writing for the majority, said:
“The words of section 2 have the deepest significance; the words have such a profound meaning, and are such a lucid revealment of the place where political power is lodged for the benefit of the people, as should make a vivid impression on the minds of all. Each generation of people inherit this great and far-reaching political power from the preceding generation. As an inheriting generation, it is part of their birthright to receive such power; to protect it with all their intelligence; to preserve it; to enjoy it, and hand it down to the future generation, to posterity, unimpaired. In this connection it would be well for all who, for a time, are invested with authority and commissioned by the will of the people to exercise for the people and for their benefit some of the inherent power of the people, to comprehend that all such persons, so briefly commissioned with such authority, are but the agents and instrumentalities selected by the people to perform certain duties for the people. In this sense, Governors of states, Legislatures, and courts, and each and every other person engaged in performing a public duty prescribed by the people, is, at all times, the agent only of the people, to exercise for the people such delegated political power as the people, in their sovereign capacity, may determine shall be exercised by such agents or any of them. All political power being in the people, they may delegate what powers they deem best; they may also repossess themselves, wholly or partially, of a delegated power by a consent of the majority of all the people, in whom is inherent all political power, such consent to be expressed in the manner provided by law.” 171 N.W. at 214-215.
In declaring the amendment of § 202 effective, this court looked to the object of the amendment, i. e., to acquire for the people a concurrent power with the legislature to initiate amendments to the Constitution. In holding that the provision should be construed to uphold this purpose, it said:
“The constitutional provision, therefore, should not be construed so as to defeat its evident purpose, but should be construed so as to make it operative and effective, and to overcome the difficulty which it was intended to obviate.” 171 N.W. at 218.
The history and purpose of the amendment was described in State v. Hall, supra, as follows:
“Again, in construing the Sixteenth Amendment, the contemporaneous history should be taken into consideration; the insistent demand of the people to be allowed the right to propose amendments to the Constitution, the history of the resolutions proposing the amendments in the legislative assembly, the fact that campaigns were waged partly on the issue of adopting the proposed amendment, are all matters which may receive consideration in the construction of a constitutional amendment.” 171 N.W. at 218.
State Board of Canvassers, 44 N.D. 126, 172 N.W. 80, 96 (1919), concurring opinion of Justice Bronson.
“But section 202 was framed for submission to the common people, who had asked for bread and did not expect to be given a stone. For years they had made a strenuous and determined fight for the initiative and referendum, and they did not look for their public servants to offer them for approval a thing in the form of a snare, a trap, or a delusion. . . .”
“Hence it behooves the courts to give to section 202 a broad and liberal construction, so as to advance and secure the purposes and intentions of those who adopted the amendment.” 171 N.W. at 233.
The authors of 16 C.J.S. Constitutional Law, § 14, writing about initiative and referendum, omitting supporting footnotes, say:
“Initiative and referendum provisions should be liberally construed; and any doubt should be resolved in favor of the exercise of this right by the people. As a general rule such provisions in a constitution should be construed as a whole. The exercise by the people of the power thus reserved will not be interfered with except on a clear showing of a violation of the law, but the rule that such provisions will not be so construed that the real intention of a referendum petition may not be defeated by a mere technicality will not extend to permission of substantial violations of constitutional requirements.” [Emphasis in original.]
See also, 82 C.J.S. Statutes, § 117, and 42 Am.Jur.2d, Initiative and Referendum, § 5.
Conclusions
With this admonition in mind that constitutional provisions should be construed to effect their purpose, and in view of the history of the initiative and referendum which shows that these were provisions the people fought strongly for,
“The right of direct legislation in the people must be administered by the officers charged with that duty in such manner as to make it operative. If technical restrictive constructions are placed upon the laws governing the initiation and submission of these measures, the purpose and policy of the people in establishing the same will be entirely defeated, and instead of becoming an effective measure for relief from evils, under which they have heretofore suffered, there will be naught but an empty shell . . . Those who circulate the petition will necessarily be drawn from the ranks of volunteers or those who, for a very small consideration, call attention to their fellow citizens to the measure proposed, and solicit their interest therein. Necessarily even with the best safeguards that can be thrown around the circulation of petitions, where such a large number of names are required, inaccuracies and technical departure from prescribed forms are certain to occur every time a petition is circulated. . . . All of these things are proper to be noted and taken in consideration in the administration of this law. It can be made effective or defeated by the officers charged with its administration, and it is our duty to sustain it, rather than destroy, if it can be accomplished within the law.”
In the instant case, volunteers circulated the petitions to refer the Cross Ranch Bill, and obtained 13,270 signatures, of which 1,150 were rejected by the secretary of state as he deemed that these individuals had failed to correctly sign the petitions in that they did not give complete post-office addresses. At issue here is the construction of Section 3 of
“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence. Each elector signing a petition shall also write in the date of signing and his post-office address.” [Emphasis added.]
It is not alleged that the rejected signatures are not genuine. Rather, they were rejected because the secretary of state, after approving the form of the petition, construed the words “P.O. ADDRESS” to require house numbers and street addresses in addition to city and state in the cases of the larger cities in this state.
It is, of course, absolutely necessary that each individual who signs a petition be an “elector,” i. e., one who is qualified to vote on the law. This requirement has always been a part of the constitutional provision dealing with the initiative and referendum. Hernett v. Meier, supra.
The further requirements that each elector shall also write in the date of signing and his post-office address were added to the Constitution with the adoption of
The purpose for adopting
Adding the requirements of the date of signing and post-office address to the Constitution apparently then were not immediately in response to Hernett. Presumably they place a greater burden on the committee for petitioners and secretary of state, who act as agents for the people, to preserve the integrity of the process. However, this burden should not work to the disadvantage of the qualified electors who signed the petition and expected their signatures to be counted.
In the instant case, 13,270 people signed the petitions, evidencing a desire to have the bill referred. They attempted to comply with the constitutional provisions by adding their city and state to the designated column, in accordance with the sample provided.
The Constitution does not define what constitutes “post-office address.” It would not promote the purpose of the Constitution to exclude a signature because the signer failed to comply strictly with a technical requirement where the sample provided misled the signer to believe that city and state (i. e., “Bowman, N.D.“) was a sufficient designation of post-office address. We do not mean to imply that the secretary of state may never require a street address. Rather, under the circumstances of this case, substantial compliance with the constitutional mandate is sufficient. See State v. Gray, 67 N.D. 148, 271 N.W. 133 (1937); Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687 (1932). Cf., State v. Hall, 35 N.D. 34, 159 N.W. 281 (1916); State v. Hanna, 31 N.D. 570, 154 N.W. 704 (1915).
Although it undoubtedly would have been easier had complete addresses been given, Meier was able to contact the people whose
We are guided in our decision by the principle that the right of the people to be heard should be maintained. We will not defeat the real intent of the signers on the basis of a petition that was not artfully drawn and was misleading. We hold, under the circumstances of this case, that the designation of city and state was a sufficient compliance with Section 3 of
In light of what we have said, we need not address the question of whether or not the corrections made by the committee for petitioners were proper. Likewise, we deem it inappropriate for this court to address the other purported irregularities raised by the attorney general. It has not been asserted that those irregularities entered into the secretary of state‘s determination that the petitions were insufficient. It appears further that proceedings under the statute are available in the case of fraud.
A public question being involved, there will be no costs allowed.
PAULSON and SAND, JJ., concur.
VANDE WALLE, Justice, concurring specially.
I concur in the disposition of this matter by the majority opinion. The requirement of adding an address to the signature can have but limited purpose—to assist the Secretary of State in ascertaining whether or not that person actually signed the petition and whether or not the signer is an elector of the State of North Dakota. There is no doubt in my mind that if the population of the cities in North Dakota continues to increase and the population of the rural areas continues to decrease, the need for street addresses in the cities to assist the Secretary of State in his task will become more significant. It is no mystery that it is easier to determine the residence of a person in rural North Dakota—where most people know one another—than it is in the more densely populated cities where it is not uncommon to find several persons with the same forename and surname in the telephone or city directory. I find nothing reprehensible in requiring street addresses in the larger cities but not requiring them in the smaller cities in which street addresses are not commonly used or may not even exist. Requiring the signer of the petition to add his own street address thereto may help to ensure the correctness of the address; however, because the purpose of the requirement of a street address is only to assist the Secretary of State in determining whether or not the signer actually signed the petition and whether or not the signer is an elector of the State, I do not believe the signature should be rejected if, as in this case, the street address was added during the period of correction by some person other than the signer of the petition. If the party adding the street address places the wrong address on the petition and if the Secretary of State cannot locate the signer of the petition, it may be cause for rejecting that signature, but I do not believe the fact that the street address is added by someone other than the signer is a valid reason of itself for rejecting the signature. I would therefore hold the requirement that the signer write in his street address to be directory rather than mandatory, and would not reject the signature because some other person added the street address.
In his response to the Petition for Review, the Secretary of State raised several additional issues regarding the circulation of the petitions—which he now contends may make the petitions invalid. These include such matters as the petitions not be-
“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence. . . .”
The allegations of the Secretary of State, if true, may have considerably more significance than the issue with which we are here concerned. The requirement of having the elector sign the petition in the presence of the circulator and of having the circulator swear that the electors who have signed the petition did so in the presence of the circulator may be significantly more important in preventing fraud than the requirement of street addresses. In addition, the falsification of an acknowledgment either by the person acknowledging his signature or by the notary public taking the acknowledgment is not a matter to be treated lightly. There was no attempt to deny the fact that someone other than the signers of the petition added certain addresses to the petition during the period of correction. Whether the additional allegations of the Secretary of State contained in his return would be denied or admitted by the parties involved is not known to us.
However, in his letter of August 24, 1979, to McCarney, the Secretary of State raised these allegations by stating:
“While not being determinative of the insufficiency of the petition, other matters have been brought to my attention by electors through means of affidavit and other information that raise the question of the validity of certain signatures for reasons other than insufficient post office address. . . .” [Emphasis supplied.]
We do not know whether the allegations are founded in fact or whether, if they were founded in fact, the Secretary of State would have declared the petitions insufficient for those reasons. Because the facts and the Secretary of State‘s determination based thereon are lacking in the record before us, these allegations are not a proper matter for the present proceeding.
For these reasons, I concur with the majority opinion in the disposition of this matter.
ERICKSTAD, Chief Justice, dissenting.
I respectfully dissent.
Although Justice Pederson, in speaking for the majority of our court correctly states principles of constitutional construction, in his search for the meaning of the present language of the pertinent provisions of our State Constitution he has ignored recent history and thus has arrived at conclusions of law that are strained and that fail to express the actual intent of our people. In view of our decision in Hernett v. Meier, 173 N.W.2d 907 (N.D.1970), and the response of the people of our state through their approval of a constitutional amendment (
When Hernett was decided in 1970, the requirement that each signer of a referral petition also add his residence and post-office address was statutory only. Such a requirement was not a part of our State Constitution, which, subject to the United States Constitution and treaties appropriately entered into, is the highest law in our state. As the majority opinion in Hernett said, “All that the Constitution requires is that the person sign his own name and that he be an elector of the State of North Dakota.” At that time the Constitution required nothing more. Article II Section 25 of our Constitution, in effect at that time, said that, “Laws may be enacted to facilitate its operation, but no laws shall be enacted to hamper, restrict, or impair the
Although constitutional change occurs slowly, and rightfully so because hastily conceived and adopted changes could be very disruptive if not disastrous, constitutional reform did come when our people, on November 7, 1978, approved
“Each elector signing a petition shall also write in the date of signing and his post-office address.”
In view of the foregoing historical background leading to the approval of
In his affidavit, dated September 21, 1979, the Secretary of State says in relevant part:
“On August 10, 1979, I caused 250 cards to be mailed to individuals whose post office address was indicated as ‘Bismarck‘, ‘Mandan‘, ‘Dickinson’ and several other large cities throughout the state; the addresses used on the cards were the addresses given on the petitions when originally filed (Exhibits 8-1 through 8--284). On August 16, 1979, I caused an additional 110 cards to be mailed to individuals in the same cities. 290 of all cards were returned unlivered [undelivered] because of ‘insufficient addresses.‘”
In Hernett our court utilized an abuse of discretion standard for reviewing the secretary‘s determination of the sufficiency of referendum petitions. Justice Strutz, speaking for the majority, said:
“So the Constitution places upon the Secretary of State the duty of determining, in the first place, whether the petitions conform to the requirements of the Constitution and the laws of this State. In the discharge of such responsibility placed upon him, the Secretary of State must exercise a certain amount of discretion. Can we say that he has abused this discretion in passing upon the petitions
If the Secretary of State is authorized by our State Constitution to exercise discretion, we must recognize that the discretion is his, not ours. In my view he did not abuse his discretion in determining that the addresses placed on the petitions were insufficient when mail addressed to those addresses was returned as undeliverable. His decision should be upheld especially in light of the way that he illuminated the path by which the petitioner could proceed to comply with the State Constitution.
The Secretary of State, by letter dated July 24, 1979, informed the petitioner, Robert P. McCarney, of the exact manner in which the petitions could be made to comply with the State Constitution:
“It is necessary that you return each numbered petition requiring correction to the same circulator who signed the affidavit and who circulated such petition. The circulator must contact each signer whose address needs to be completed and have such signer write his or her complete address, as is now required by the Constitution.
“Each petition returned with corrections or amendments should be accompanied by an affidavit of the circulator stating that he (or she) previously circulated the petition, that he (or she) personally contacted the signers who needed to complete their addresses, that he (or she) witnessed each signer write his (or her) complete Post Office address, and that he (or she) knows that the persons who signed the petition initially are the same persons who wrote in their own Post Office addresses.”
Notwithstanding those specific and clear instructions, the petitioner did not follow them. Instead, he had persons who were apparently not even circulators insert house numbers and street addresses in the petitions, by the use of telephone directories, for signers who had originally failed to do so. In Hernett, it was urged that a number of signatures were invalid because the petition circulator inserted the residence and post-office addresses of the signers out of the immediate presence of the signers. In upholding that practice, Justice Strutz, speaking for the majority of the court, said:
“As we heretofore have pointed out, all that the Constitution requires is that the person sign his own name and that he be an elector of the State of North Dakota. These signatures clearly comply with this fundamental constitutional requirement. Nowhere in the Constitution is there a requirement that the signer of the petition place his residence, postoffice address, and date of signing on the petition in his own handwriting.”
In response to that statement, the Legislature passed a concurrent resolution providing for a constitutional amendment and our people approved it.4 That amendment, which is contained in
Justice Pederson has ignored the historical background leading to the adoption of
Justice Pederson says that the post-office address requirement “should not work to the disadvantage of the qualified electors who signed the petitions and expected their signatures to be counted.” This cannot be a sufficient reason to allow noncompliance with a constitutional mandate.
In the case of Kuhn v. Beede, 249 N.W.2d 230 (N.D.1976), this court held, in an opinion written by Justice Paulson, that an absent voter‘s ballot could not be counted in those instances where the election officials failed to stamp and initial the ballot as an official ballot pursuant to the statutory requirement. It was therein urged that the absent voters should not be denied their privilege to vote through the default or neglect of an election officer to properly endorse the ballots. The majority of this court rejected that argument and quoted approvingly from the case of Miller v. Schallern, 8 N.D. 395, 79 N.W. 865, 866-67 (1899),
“. . . counsel‘s utmost contention is that an enforcement of the statute as it reads may in some cases operate, and in the case at bar will operate, practically to deprive electors of their constitutional right to vote, and to have their votes counted. But this cannot be made a test of the validity of any regulative statute. There are many regulative provisions in election statutes the enforcement of which will and do operate to deprive voters of their privilege, and yet their constitutionality cannot be successfully challenged. . . .” 249 N.W.2d at 237-38.
In holding that the absent voters’ ballots in Kuhn could not be counted, we said:
“The contention is made that, because fraud has not been alleged in the casting of the 202 absent voters’ ballots which were not endorsed with the official stamp and initials, they should be counted notwithstanding that the law specifically provides that such ballots are void. If we were to hold that unless fraud is alleged such ballots shall be counted, we would be encouraging such allegations in the future. An allegation of fraud is easily made but is difficult to prove. . . . It is no doubt because of this difficulty and the consequences in the election process of such a requirement that the legislature required the stamping and initialling of ballots in order to prevent fraud in the first instance. Although we can conceive of means by which such a procedural safeguard might be circumvented, and although there may be other means that could be devised to prevent fraud, we cannot conclude that the means adopted by our legislature does ‘not contribute substantially to the integrity of the election process.‘” 249 N.W.2d at 236.
The foregoing reasoning in Kuhn is even more compelling in the instant case because we are dealing here with a constitutional mandate, not merely a legislative one. We cannot validly interpret out of existence the constitutional requirement of a post-office address on the ground that the signatures of some qualified electors may not be counted if the requirement is upheld.
Through the appellate brief prepared by counsel for the Secretary of State and by the personal affidavit of the Secretary, this court has been informed of certain irregularities in the referral petition process which were discovered by the Secretary of State during his investigation into the sufficiency of the petitions. The validity of 1,842 signatures may be affected by one or more of the following irregularities: (1) Persons signing petitions as circulator did not personally circulate the petitions; (2) Dates of notarization on petitions were changed subsequent to the notarization; and (3) Petitions were notarized prior to acquisition of any signatures on the petitions.
Section 3 of Section 1 of
“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence.”
As the Secretary of State did not include these irregularities in his notice informing the petitioner of matters requiring correction, they may not be a basis for the Secretary‘s rejection of signatures. Notwithstanding that fact, if the foregoing irregularities are true they further demonstrate the type of loose procedure that our State Constitution as now written was designed to prevent.
By the approval of
Walter A. SHAW, Plaintiff and Appellant,
v.
BURLEIGH COUNTY of North Dakota, a political subdivision of the State of North Dakota, Defendant and Appellee.
Civ. No. 9642.
Supreme Court of North Dakota.
Dec. 20, 1979.