*1 220 v. 103
295; Merritt Minn. 114 v. Duluth, 758; N. W. Andrews 236, South 187 Mich. Haven, 294, 153 N. W. Ann. L.R.A.1916A, 827, 908, 100. Cas. See v. 1918B, also School Dist. 15 Neb. 19 N. 514, Parody W. Gilfillan v. 145 Pa. 22 Atl. 633; Grier, 317, 593; Brummitt v. Waterworks Co. 33 93 285, Pac. Collins v. Ogden Utah, 828; Keokuk, 147 125 N. W. 605, Bell v. 71 Wis. 36 N. Iowa, Platville, 139, 231; W. Amusement 831; Co. v. Kan. Syndicate 74 Pac. Topeka, Anderson 606, and v. 162 N. Montevideo, Minn. W. 1073, supra.
There is another reason from must be why judgment appealed set aside. Under the 251, Laws 1931 provisions chapter (quoted above), defendant school district unquestioned has to rent school auditorium for the and in high purposes, the circumstances, shown the evidence in this case. The permanent injunction rendered in this case contravenes of the provisions statute. While, course, the statute did not affect rights at the time parties the judg- ment was it does affect the entered, right plaintiff perma- nent at this time and injunction that such requires injunction set aside. For “an will injunction be dissolved where, its subsequent which issuance, a statute the acts legalizes restrained enacted.” 32 C. J. 407. p. from set judgment aside, and the cause appealed is remanded district court with directions to dismiss the action. and Bure, concur. JJ.,
Bukice, Birdzell, Nuessee, No. [File 5964.] H. C. SCHUMACHER, H. R. Wood, Allen McManus, Bert Morrison,
and J. A. Petitioners, v. ROBERT J. Felver, BYRNE, Respond ent.
(237 741.) N. W. *3 Opinion July 1931. filed & Weaver Francis Murphy, Lemlce petitioners. Morris, Simon, General,
James and Charles At- Attorney Assistant General, torney respondent.
Lawrence, Powers, & Fuller intervenors. Murphy, J. On June 1931 the petitioners delivered to the secretary Burr, of state a number instruments united to form large a general peti- tion as follows:
“REFERENDUM PETITION
A MEASURE A OF FOR REFERENDUM SENATE BILL NO. 100. BY THE BE IT ENACTED PEOPLE THE OF STATE OF
NORTH DAKOTA: *4 Bill ‘For That Senate No. an Act 100, to Amend and re-enact Sec- and 5 3, of Session Chapter 166, tions Laws of 2, North Dakota for for and a tax 1929, of four cents providing year per gallon upon fuels, and further for the motor vehicle distribution providing of the from said and revenue derived tax,’ passed by 22nd Legislative its at session regular 1931, be Assembly and same is re- hereby disapproved. and pealed
Yes [ ]
No [ ] of over We, undersigned, consisting of the qualified electors Dakota, of State of North hereby at that the large, propose above to the submitted of Bill No. Senate Tor measure 100/ we and state, rejection, for their or approval electors qualified to submit the North Dakota of of State Secretary request hereby next at the primary of the state presidential measure the voters above 1932. March, Third on the to be held Tuesday election Bill Senate shall be ‘Referendum of the measure The ballot title of motor vehicle cents per gallon for tax four 100, upon providing No, from said tax.’ of the revenue derived for and the distribution fuels H. N. R. Dak., Chairman; H. Schumacher, we name 0. Fargo, And N. Dak., Allen Grand Bert McManus, Dak., Wood, Fargo, N. Forks* Felver, A. N. Dak. who Dak., N. and J. Morrison, Robinson, Fargo, Petitioners and who shall represent the committee for shall constitute signed by approximately act petitioners.” time and tendered within the pre- state nine thousand electors the state of 25 of Constitution amended. scribed próvisions § made an examination state received the petition, The secretary with the accordance 18, 1931, requirements same on June and, Constitution which says: said § each if he state shall finds petition, “The pass ‘committee for he shall notify insufficient petitioners’ amendment,” for correction or twenty allow days of the committee notified the chairman as follows: State,
“Department Dakota, North Bismarck, 1931. June 18, 100, Committee Referendum S. B. Petitioners, Dakota. North Fargo, Schumacher, Mr. C. Chairman.
Attention: H.. Dear Sir: that the
You are notified referendum S. B. hereby to 4- Twenty-second Assembly, 100, passed by Legislative relating fuel tax motor vehicle of revenue there- cent derived distribution filed this officeon June 2nd—does not from with meet the requirements D. Article Amendments to Constitution S. 135, N. L. Chap. insufficient for submission to the voters the next found at to be on the third in March 1932. presidential primary Tuesday held *5 A check of various careful this separate copies peti- making up shows same to have been tion In 297S signed by petitioners. eases, however, that the himself did not appears very clearly signer the date add residence and office address and that post signing, in information was this entered some other handwriting person than this of 2975 amount from total signer. Deducting 9277, the number of leaves 6302 signatures, satisfactory acceptable signa- or 698 than tures, number Article required less Amend- by ments to In this our Constitution. we wish connection to state for in information that at number of defective your arriving signatures credit has been for 964 in which (2975) proper given instances himself did enter ditto marks in signer originally place of date and residence, own statement personal of a according your week ago. But for this number of defective signatures would have been 3939, a total of 5338 or 1662 below making acceptable signatures the required amount. conflicting somewhat contradictory in
Although no meaning is made to the objection petition itself as wording our this, expressive intention opinion, sufficiently the petitioners B. 100 to effect a referendum of S. Twenty-second passed Legis- lative of our state. Assembly
,Very truly yours, Robert Byrne, of State.” Secretary to this court petitioners immediately applied for a review of this decision of the of state an and for order reversing file decision and requiring accordance with the of the Constitution of this state provisions and to place ballot as same law. required R. this Walter John C. Reed,
Upon ITart, and Mrs. Walter C. to this court for leave to Taylor applied intervene, to be claiming of the state taxpayers electors and beneficially interested result of these proceedings. application accompanied “answer for review proposed cross-petition for review” these taxpayers wherein allege only secretary of state was *6 226 notice in his set forth on the the petition grounds in rejecting
justified the “pur- also that allege the but for petitioners” the “committee to thereto have annexed not or does contain petition ported that pur- the state;” electors of seven thousand of signatures is in form a but referendum petition referendum petition ported the people for the enactment by “an initiative substance petition and of said a for the repeal Dakota of measure of North the state it lacks the is void because 100,” signatures Bill No. and Senate “does not and set contain electors; that said petition thousand ten of the measure subject-matter forth a ballot title fairly representing “the measure that it fails to disclose that referred,” in this be sought an is in fact amendment of and referred sought §§ Laws of the state of North Dakota 166 of the Session chapter and set forth “the nature and that fails to disclose 1929;” year the material and and amendments changes important significance Bill and the said Senate No. fails to thereto accomplished by 100;” forth whether the tax cents per set of four proposed disclose and increase tax of cents is a mere three already provided gallon is an additional and tax whether it independent pro- or ballot title does not include and set forth the fully fairly posed voted to be upon. question Bill measure involved denominated Senate No. as the of 1931 not been when
Session Laws had was published therefore the law circulated, and could not be described otherwise— time insufficient to of state intervening permit being have the laws However compiled and after the published. tender Edition the Session “Popular Laws of 1931” was Bill 100 is issued and Senate No. therein as 185. designated chapter March 11, 1931, law approved carries no was emergency the law clause. Hence would into 1st. effect It ordinarily go July thus became to have imperative review heard application and the was set for the 30th of 1931. June, promptly hearing return his state filed answer return Hpon day tender of in admitting rejection thereof accord- in ance with made letter the statements and in notification, addition he further thereto sets forth reasons with harmony made allegations taxpayers intervene. seeking ‘if court as tbe Tbe to intervene were beard taxpayers seeking to do; tbeir tbeir without application granted, deciding right tbe of inde- this of this determines but action court no way right of the Secretary to intervene in review of tbe decision a pendent parties of a reject State for referendum law. set, was bad on tbe date order to prevent Argument possible from referendum this court, as complications arising uncertainty tbe curiam on announced decision follows: following day, per
“IN THE SUPREME COURT STATE NORTH DAKOTA OF H. H. Schumacher, C. R. Allen McManus, Bert Morrison Wood, and
J. A. Felver, Petitioners, v. Robert Byrne, J. State, Secretary Respondent.
Per Curiam: court,
Tbe beard tbe having arguments respective to parties this and tbe in behalf of proceeding argument presented certain tax- who seek to intervene payers permission therein; and due considera- tion been to the various given having presented for questions deter- mination, and tbe satisfaction appearing of tbe court that tbe referendum are petitions not rendered insufficient tbe defects by claimed exist and that tbe therein, decision of tbe of state secretary such petitions be is bolding insufficient, incorrect, therefore ordered that tbe state be be secretary thereby required file said accept petitions to law. conformably A formal will be opinion prepared filed hereafter.” In accordance with tbe provisions of 101 tbe Constitution which § says: . every point fairly upon arising tbe record of tbe case
. shall be considered and and tbe reasons decided, therefor shall be con- . stated . .” cisely writing,
this a later at date. opinion prepared 25 of tbe
Section Constitution, amended, makes tbe exercise tbe reserved referendum, and provides that: at thousand electors “Seven may, large by petition, suspend an except enacted the legislature, measure by operation any the elec- . . . referred to measure.” measure “Each emergency shall be placed upon shall its ballot which tors, title, be submitted . .” . “The of state the ballot of state. secretary secretary insufficient he shall shall each and if he finds it upon pass petition, the ‘committee allow days for the notify twenty petitioners’ of state correction or decisions the secretary amendment. All such shall be to review regard subject Supreme any Court. ... If are against any petition proceedings brought attack- shall be burden of upon any ground, proof party “Each it.” have a ballot title which shall thereon ing printed . .” matter measure. . represent subject shall fairly “All measxires electors submitted to the shall be the state published by as follows: ‘The state shall cause be printed elector a mailed to each of each publicity pamphlet, containing copy ” measure with its title to at ballot be submitted election.’ any together “In electors, measures to the of state all submitting shall other officials the election laws until additional guided by shall be “This section shall be legislation self-executing provided.” *8 its and all shall treated as Laws be provisions be mandatory. may enacted to facilitate its but no law shall enacted to operation, be hamper, restrict or exercise of impair herein reserved to rights people.” section makes same for the exercise of the reserve of the initiative and that “The
power provides clause of all enacting measures initiated shall ‘Be it be: enacted by electors, ” of the state North Dakota.’ The Constitution people does not a a form for referendum nor state what such provide petition, petition as it for a title, shall contain nor except ballot does it provides specify act on the of electors that any particular part except they “may by the operation” of the measure petition suspend attacked. A is “a formal written addressed to an petition request official hav- to it.” To ing power grant (Webster.) requires petition signatures; but Constitution makes no requirements on the of the electors part state than what is other desired to the statement. sign We no have statute forma for a referendum providing petition, it is clear that while 25 of said the Constitution implies that clearly §
220 such as be legislation may required, tbe may provide yet legislature will must such as facilitate the of this enacted be operation laws cannot be or of referendum and permitted hamper reserve power the exercise thereof. or restrict impair n 1104al and 135, 1925 the enacted chapter In legislature being §§ as 1104a2 of the follows: Supp. referendum or recall pe- No shall any initiative,
“1. person sign 33 of 26, of Articles or tition circulated to the provisions pursuant he is elector. unless Constitution, qualified more than shall such once. No any sign person address, shall add and date residence, post-office Each signer signing. such before must have attached filed being copy any
Each each the effect that to the signature ap- thereto an affidavit to paper whose name it is the signature person genuine purports pended elector. and that each such be, person qualified 2. convicted of person Any violating any provision Penalty.- to' of misdemeanor.” this act shall be deemed guilty 60 N. D. of Wood v. N. W. this In the case Byrne, nature character of said considered the chapter court hold such law of 1925. and was “intended to Session Laws regulate initiative, referendum, the circulation of or recall facilitate pe- in the exercise of state, so as to aid titions, the Constitution him determine itself, pass granted such before same, must be filing sufficiency its In other so as to effect words in purpose.” construed liberally must it that it this law we will facilitate the interpret construing will be contrary exercise of the power, provisions otherwise Constitution. form is attached of an referendum petition being “Be it enacted says, because people initiative *9 It is true that the provision North Dakota.” the use the state is in connection with used initiated measures quoted sentence the is there a in the Constitution for such requirement nowhere that even referendum but contained the in a petition; though it not does invalidate 'As necessarily petition. petition referendum but no can form; is no one read prescribed there pe- out pointed 2¿0 to refer that it is a and knowing understanding without
tition itself The petition the legislature. a law passed the electorate forth according sets it attacked and the law describes specifically “Referendum a is denominated the act. The petition title of of Senate- a referendum measure for as “a is described Petition” and says the petition, title specified The ballot No. 100.” Bill proposed 100.” Bill No. Senate “Referendum of as “the describes it The of state specifically Twenty-second Legislative B. 100, referendum of S. passed a “is that in opinion wording He states Assembly.” specifically a to effect intention of petitioners expressive sufficiently B. 100.” of S. referendum have misled. Besides not been
The themselves could petitioners that had what they that knew wanted they presumption they a of the petition others, body intent to cursory reading no mislead it could have better It can- expressed. even if been shows its purpose, assume that this that not be contended reasonably they might . a it. and that so intended law, initiate they a is to the form for the “ballot title” prescribed Some made objection it that same is' indefinite and that claimed misleading, is measure, subject-matter not fairly represent does is not that the measure attacked an amendment the voters does apprise does not voters four a and that it that the law, apprise prior not fact additional tax cents tax an of four but cent attacked cent. There are objections mere tax of one other which additional we need not consider. the exercise
The section of Constitution providing thereon a to have “printed requires shall subject-matter title fairly represent ballot which the meas- that while ure,” and also such referred measure is to be prescribes title,” a “ballot this title” shall submitted “ballot be placed upon of state. the ballot by be
Distinction must made between the title” “ballot and the state- voted ment be “ballot title” is question upon. proposed It not does statement misleading. be purport question —it is the title. It is it could possible merely It improved. may not be labelled the others label way it; but the it could may only way *10 circulated “Senate the was was as at the time stated have been in addition, to prevent any misunderstanding and 100,” Bill No. The cents for the tax four per gallon. of this bill provided stated of the subject-matter does “fairly represent “ballot title” as proposed the measure.” if title,” “ballot as made to the form of the is
Strenuous objection will in which the electors be manner apprised this constitutes the so It is referred. is said the matter juggled the law the contents of No. to “Shall Senate Bill manner is and the mislead, say as to proper as “no” etc., “yes” and Chap, approved” by being —followed indicated. amendment, “a that constitutional
The law force requires today other shall be stated fully or measure, initiated or referred question ‘no’ the words shall be ballot, ‘yes’ on such printed and fairly of the statement of the etc.” Sec- on at the close question, the ballot the Laws the Section 919 of Comp. tion 959 the Supp. requires any auditor of each county of state to to certify county secretary to be sub- amendment other or question” constitutional “proposed then, vote.” “to the the state popular Clearly mitted people that constitutional amend- of state has duty seeing secretary is stated fairly or measure an initiated referred ment, fully or the “ballot title” is on the well as printed. as ballot, having uni- remove obtain means temptation deceive, adopted It the state. is state duty of issue throughout formity vote if desires that electorate question may “yes” approve “no” or if it it. act of the disapproves legislature, on this however that the was not rejected It will be noted has been sug- that consider same because it we merely ground, he return of state wherein additional gives gested by with the those reasons for raised rejection harmony objections objection to intervene. So far form of pe- seeking is concerned and the number and the signatures tition genuineness is valid. of state found that the residence and address postoffice hundreds of were not written each day petitioners signing themselves. It conceded that this made of such petitioners finding examination itself and there secretary upon effect extrinsic evidence offered. is no intimation to the any *11 nor not contend the are not does secretary signatures genuine, It true that there is number of is required not a sufficient signatures. attack a wherein those to intervene filed cross-petition desiring they are that where the the but the Constitution says proceedings petition; the burden of upon proof brought against any petition any ground, is shall be the it and no whatever offered upon proof party attacking show the not that each to that are sig- by anyone signatures genuine, written or that the himself, nature was not the petitioner petition not seven electors This is a is thousand of the state. pro- signed by sole to the of the on this matter —the review ceeding finding secretary matter he the This is an rejected which upon petition. proceeding attack the act the therefore of and it is contended that upon secretary the the the effect these of to that did not finding secretary petitioners write in their residence address, themselves own nor postoffice themselves their comes before us clothed the date with signatures pre- of correct. sumption being
The Constitution does not the for the prescribe procedure secretary state follow is him. of when “If he finds petition presented it it is his insufficient” the committee for notify the duty pe- What shall in titioners. he do or how shall examining he its is not determine it sufficiency specified. Clearly, however, places in him the the first whether the duty determining, place, pe- is tition conforms to whatever the Constitution required by laws the state.
But we need not determine whether there such a presumption. of the the act Manifestly governed by provision 135 of 1925, 1104al the Session Laws of Supp. chapter being § not It contended that case the did not already quoted. signer “his himself write and date of postoffice address, residence, signing” authorize and direct the he did not or some circulator for him. other to do The Constitution does not person writing his to “add residence, address petitioner postoffice require is a provision, and the statute statutory date does signing.” shall not, “add same own that his signers handwriting.” say provision The Constitution makes by making same. The statute he signing presumes petitioner signs bimself, provides tbe penalty more than signing once. Not but the statute only this, requires affidavit to show “is the signature genuine signature whose name person to be.” It does not require that the written purports “residence, post- address, office shall date signing” personal writing the one whose name it be. This does purports the circu- permit lator or else, own to write in anyone volition, the residence, post- address, office or date of the but it does not signing; preclude signer specifically anyone to write residence ad- directing and postoffice dress. We must remember the statute cannot be permitted hamper or hinder the that the statute is to facilitate petitioner, purpose the exercise of the As reserved. we out v. pointed Wood D. Byrne, N. N. W. this statute is supra, construed facilitate the exercise of the aid to power by extending *12 state in examination of as to fraud the prevent public; but there can be no of fraud where the possibility residence and post- office and date of are address There is no signing given correctly. contention the residence whatever and addresses and postoffice dates of to are not and if objected correct; be correct signing then they furnish to the state the of data they secretary very contemplated by the statute fraud. prevent
It is true that where electors referendum seek, sus by provision, to act of are legislative a pend operation they attempting suspend will its of the as people expressed by agent, legislative assembly, there must be a strict and therefore “with the compliance mandatory under which a constitutional referendum provisions is authorized.” ex rel. Baker v. 31 N. D. Hanna, State N. W. 704. The with the constitutional provision dealing contemplates its “all of says shall be this, provisions treated as mandatory” are and thus with the petitioners required comply provisions In of state. as the this case as well however nine thousand more required number, far than the did file with the electors, within a referendum the time state, of Constitu required by the enacted measure specified desired to have referred They they tion. the title to it by by described given and legislature quoting— numbered it in accordance with in full. the number They title of which it is known file and number in the senate published volume the session laws. on each of the They of printed copy title and listed the names at least five electors who sufficient ballot of “committee who were be the for the were to petitioners” and “repre- sent and and The correct date act petitioners.” signing residence correct address of each postoffice signer given each has to it the affidavit attached copy required by dotted, “i” enactment. The law does not to be legislative require every “t” to be abbreviation crossed to be followed every every in order with to constitute strict period mandatory compliance does provisions Constitution. Constitution require address and date to be nor is residence, postoffice signing, given; there constitutional to the effect that any statutory provisions, enacted for the use reserved purpose facilitating of referendum, shall be construed It strictly petitioners. against is sufficient if there is such as with the statute effectuates compliance its in the of fraud. purpose prevention assisting
It is contended that the rule strenuously laid down supreme court of South the case Dakota v. Pyle, Morford S. D. 220 N. 907,W. this case. Here the applicable court supreme of South Dakota that “the insertion held busi- residence, signer’s date of verification ness, postoffice address, cir- signing, by person are names referendum, important as culating equally themselves,” that the indication signers residence, business “ditto does not address, etc., by excuse from marks, signer inserting marks himself” nor excuse him from ditto the date of sign- writing *13 An case examination of this however shows the court ing. supreme Dakota South had under consideration the aof statute provisions which was constitutional into effect. necessary carry provision in South The constitutional Dakota self-executing certain is, ours and the made legislature regulations whereby signer his residence and could show business address postoffice ditto the date had to be in his marks, but own signing handwriting. it as much made him write in statute obligatory upon date as his write name. The it did to of the statute language indicated that was the one could who insert the only ditto marks signer address, but residence, that he could do this in postoffice lieu labor it out. However he to write writing required out tbe date of We are a statute whose signing. construing only justifi- cation to “facilitate” tbe constitutional provision, and we bold that tbe of statute is object when the accomplished himself writes signer residence, bis address, postoffice and date or signing, personally authorizes tbe same done to be at tbe time that tbe signing adding of bis residence and address is all bis act postoffiee part signing tbe Therefore as directed petition. tbe curiam order per heretofore made tbe state is and file required accept tbe said pe- titions to law. conformably Ob. J., JJ.,
ChmstiaNsoN, Nuessle, Birdzell, Bukke, concur. No.
[File 5949.] E.F. E. McCURDY, A. v. Respondent, HUGHES, D. George Mann,
and Edward B. Cox, Appellants.
(237 748.) W.N.