154 N.W. 704 | N.D. | 1915
Based upon affidavits of petitioner as a taxpayer, an alternative original writ of mandamus was issued by this court directed to the governor, commissioner of agriculture and labor, secretary of state, attorney general, and president of the State Railroad Commission, to individually and collectively and as the state board of immigration, show cause why they should not meet and organize as said state board of immigration, and why said board should not proceed to perform its duties pursuant to chapter 234 of the Session Laws of 1915. To this writ two separate returns have been filed. To both petitioner demurred.
Respondents by return allege that by the filing of petitions for referendum in the office of the secretary of state, the appropriations made in § 7, of chapter 234 of the Session Laws of 1915, have been suspended and referred to a vote of the people at the next general election as provided by § 25 of article 2 of our state Constitution as .amended, and that organization of the board is a useless formality
The first two questions may be considered together. It is urged that his return as secretary of state, that this portion of the act has been referred, is as conclusive upon the courts as would be the regular return of a canvassing board upon the results of an election. The fallacy of this argument consists in the erroneous assumption that the secretary of state is required by law to make or file a return or certificate analogous thereto, passing upon the number and sufficiency of the petitioners and whether the petitions work a referendum. No certificate or return whatsoever, is either called for or provided. His duties with reference to this matter are fixed by the Constitution as amended,' and amount to no more than determining as a ministerial act the facts of record in his office as sufficient or insufficient upon which to authorize a referendum.
The legislature has not provided for any official canvass by any board of canvassers or any person or official of the petitioners upon petitions for referendum that may be filed with the secretary of state. As none is pi’ovided none is contemplated. The petitions speak for themselves. That official must cause the question to be submitted to ballot if the referendum petitions are sufficient under the law. Under constitutional provisions he must ascertain whether the petitions are sufficient in form, and if so whether they are signed by a sufficient percentage of the total electorate of the state to constitute a basis for a referendum vote. The mere counting of the petitioners is not analogous to a canvass of the vote of an election. It is difficult to see wherein any discretion whatsoever is vested in said official. The law declares what the petitions must contain to be valid. Like any other official acting
The issuance of the writ then turns upon the sufficiency of the petitions for referendum to operate a reference of § 7, sufficiency of which may be inquired into by mandamus. To constitute a petition with enough signers thereto concededly two entirely different petitions must be treated as but a petition for referendum of § 7. The signers of variant petitions must be counted in order to have the constitutional percentage of electors petitioning for the reference of § 7. One set of petitions reads: “We, the undersigned electors of the state of North Dakota, do respectfully petition you that at the next general election there be referred to the people of the state, for approval or rej ectiou by means of a vote taken at the polls, an act of the legislative assembly of the state of North Dakota approved March 9, 1915, being an act entitled, 'An Act Creating a State Board of Immigration, Prescribing Its Powers and Duties, Making an Appropriation therefor and Repealing, §§ 573, 577 and 578 of the Compiled Laws of the State of North Dakota for the Tear 1913.’ ”
“We object to this act, as it means a needless waste of public money amounting to $60,000, and a needless burden of taxation, with no benefit to the people of the state.” To this petition to refer the entire act was 3,533 purported signatures.
The other petition reads: “We, the undersigned legal voters of the state of North Dakota, respectfully order that that portion of senate bill No. 194, entitled, 'An Act Creating a State Board of Immigration Prescribing Its Powers and Duties, Making an Appropriation therefor, and Repealing §§ 573-578 of the Compiled Laws of North Dakota for the Tear 1913,’ contained in § 7, and which reads as follows: 'Section 7. There is hereby appropriated out of any moneys in the state treasury not otherwise appropriated, or as much thereof as may be
To this petition to refer only § 7 of the act, there were attached 4,722 purported signatures. It is stipulated that at the regular state-wide election in the year 1914 there were cast 82,280 votes, and that 10 per cent thereof, or 8,228 petitioners, must have petitioned for referendum before an act can be said to be referred. Neither petition alone has sufficient signers. The total to the two petitions is 8,255. Can these two petitions for referendum, one of the entire act, and the other of but the appropriation part- of it, be consolidated and considered as one petition for a referendum of the appropriation ? To be so treated, both must deal with the same subject-matter and seek the same object. State ex rel. Halliburton v. Roach, 230 Mo. 408, 139 Am. St. Rep. 639, 130 S. W. 689; Hammett v. Hodges, 104 Ark. 510, 149 S. W. 667. In the Arkansas case it is said that it is necessary that the several petitions to constitute one petition must “contain the same subject-matter, because in no other way could it be positively determined that the number necessary to propose a measure under the initiative had all petitioned for the same measure.” Logically, the next inquiry then is whether these two forms of petitions cover identical subject-matter. Manifestly they do not. One is for a referendum of the entire act; the other, for only one of several provisions of it. The former would suspend and possibly repeal the act, abolish the law creating the state board of immigration, as well as to revoke § 7 thereof, the appropriation. Nor is that all by any means that the petitioners for referendum of the act have petitioned for and would accomplish. Annulling the act would abrogate § 8 thereof, the portion wherein other statutes are expressly repealed. That would operate to reinstate those repealed statutes, §§ 573-578, inclusive, Comp. Laws 1913. Thereby would be reinstated a board of immigration of entirely different official personnel and membership. Nor is that all. Abrogation of the repealing clause would revive the former annual continuing appropriation for immigration purposes of $5,000, provided by § 577, Comp. Laws 1913, expressly repealed by the act sought to be referred. Hence, the petitioners for
Respondent’s contention is urged upon the theory that the greater includes the less, and that because a referendum of the entire act will necessarily refer' the included part, the appropriation, the petition therefor must be held as equivalent to one for the repeal of the appropriation. But respondent’s reasoning is faulty. Petitioners for reference of the entire act desire more than do those for but the appropriation part of it. Respondent’s theory would ignore the result as well as the real intent of the petitioners to refer the act. Every petitioner to referend the appropriation might in reason have refused to sign the petition to refer the act, preferring the present'board, but without funds, to the old board with funds. And the same is true of those seeking a reference of the act itself. As reasonable men, each petitioner might-have refused to join in a petition to refer the appropriation, desiring either the old board with funds or the present board with the larger appropriation. To hold that these two petitions, widely divergent in subject-matter and object sought, can be consolidated as a petition for and work a referendum of § Y, would be to violate the expressed intent of all those petitioning for a referendum of the entire act, inasmuch as it would be holding them petitioners for something not only not asked for or sought, but plainly contrary to their desires..
Mention should be made, also, that constitutional provisions are being-dealt with. These are plainly expressed in the fundamental law. It is so plain that he who runs may read. Those who would seek to set aside a legislative act, the work of a co-ordinate branch of government, and in whom is reposed and to whom is delegated the exercise of law making as both the arm and the voice of the sovereign state, should be required to come within the plain, as well as mandatory, constitutional provisions. They should be held to petition to suspend only what they have plainly sought to refer. There can be no enlargement of these written petitions by strained construction or mere inference or consolidation of it with others different in subject-matter, scope, and effect. This is but to enforce the basic law, the Constitution itself. To require less is to amend it by implication or be derelict in enforcing its provisions.
Respondents have shown no valid reason why the writ should not
This is a test case and costs will not be allowed. As the matters herein passed upon were necessary of determination that the existence of the board and its power to act be first determined, none of the respondents have acted capriciously or without cause, but, on the contrary, were fully justified in refusing to expend the state’s funds until a final decision should be obtained upon these questions.
Let judgment be entered accordingly.