171 N.W. 213 | N.D. | 1918
Lead Opinion
This is an order to show cause issued by the supreme
“Any amendment or amendments to this Constitution may be proposed in either house of the legislative assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment shall be entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice, and if in the legislative assembly so next chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all members elected to each house, then it shall be the duty of the legislative assembly to submit such proposed amendment or amendments to the people in such manner and at such time as the legislative assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors -qualified to vote for members of the legislative assembly voting thereon, such amendment or amendments shall become a part of the Constitution of this state. If two or more amendments shall be submitted at the same time they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.”
In the manner prescribed by the above section, proceedings were had to amend the above section. Such proceedings are the 16th Amend
“Any amendment or amendments to this Constitution may also be proposed by the people hy the filing with the secretary of state, at least six months previous to a general election, of an initiative petition containing the signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state. When such petition has been properly filed the proposed amendment or amendments shall be published as the legislature may provide, for three months previous to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election. Should any such amendment or amendments proposed by initiative petition and submitted to the people receive a majority of all the legal votes cast at such general election, such amendment or amendments shall be referred to the next legislative assembly and should such proposed amendment or amendments be agreed upon by a majority of all the members elected to each house, such amendment or amendments shall become a part of the Constitution of this state. Should any amendment or amendments proposed by initiative petition and receiving a majority of all the votes cast at the general election as herein provided, but failing to receive approval by the following legislative assembly to which it has been referred, such amendment or amendments shall again be submitted to the people at the next general election for their approval or rejection as at the previous general election. Should such amendment or amendments receive a majority of all the legal votes cast at such succeeding general election such amendment or amendments at once become a part of the Constitution of this state. Any amendment or amendments proposed by initiative petition and failing of adoption, as herein provided, shall not be again considered until the expiration of six years.”
The plaintiff challenges the legality of the adoption of the 16th. Amendment, maintaining, in short, it had never been legally adopted
“All political power in 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 rquire.”
The words of § 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 -mauup.r provided by law. .....- ■
Directing our attention to the first, we find that § 202 of the Constitution requires that the proposed amendment “shall be entered on the journal of the house.” The 16th Amendment was entered on the house journal by an identifying reference and the aye and nay vote taken thereon. The plaintiff claims this is not sufficient but that the proposed amendment must be spread at length upon thé house journal. In some states it is held the full text of the proposed amendment must be entered on the journal, while, in others, the proposed amendment is sufficiently entered in the journal if it contains identifying reference such as the title, number, etc. It is conceded that the 16th Amendment was entered in the house journal by an identifying reference only, and that the aye and nay vote was taken and entered on the journal as required by the Constitution. Is it not sufficient entry, under article 202 of the Constitution of North Dakota, to enter the proposed constitutional amendment on the house journal by an identifying reference such as the title and number ? Counsel for the plaintiff contends very strenuously that such entry is not sufficient and that the 16 th Amendment is unconstitutional by reason of no proper entry, same having not been spread on the record thereof. He contends also that that section of our Constitution was, in all probability, adopted from the Constitution of Iowa; that the supreme court of Iowa in the case of
The question has never heretofore been passed upon by this court. In passing upon this question, it is not only proper for the court to examine all the decisions upon the subject, but eminently proper to consider other matters and circumstances, such as the passage of other amendments to the Constitution since its adoption; the general method followed in passing other amendments; what construction has been given to the language of § 202 which is in controversy by the executive, legislative and judicial departments, or other governmental agency. Of the amendments to the Constitution, the greater part, with the exception of three or four, were adopted in the same manner as the 16th Amendment. That is, the entry on the house journal was by an identifying reference, and not by spreading at length. It would necessarily follow that if the 16th Amendment is unconstitutional by reason of the method of its entry on the journal, every constitutional amendment entered in like manner would also be unconstitutional. Since 1897, a period of more than twenty years, practically every amendment to the Constitution was entered on the journal of the house in the same manner as the 16th Amendment. These amendments affect a great variety of very important subjects, such as school for the deaf and dumb, hospitals for the insane; taxation of grain in elevators; investment of school funds and other educational funds; minimum price of state lands; the permanent location of various state institutions, such as the
In this connection it may be well to notice that the secretary of
All other branches of the state government and all the governmental agencies have given the same construction to the manner of the entry of the proposed constitutional amendment on the house journal as the legislative assembly. The judiciary of the state have under consideration, no doubt, many laws which were enacted in pursuance of some or many of the constitutional amendments passed since- 1897. The question has never been raised before them all these years to consider the invalidity of any constitutional amendment by reason of the manner of entry of the proposed constitutional amendment in the house journal. The judiciary have acquiesced in the legislative construction of the manner of making such entry on the house journal; likewise has the executive department recognized the legislative construction of the entry in question.
We are fully convinced the method of making the entry by identifying references by title or. number and the entry of ayes and nays, is a full compliance with the requirements of § 202 of the Constitution. The construction placed thereon by the legislative assembly is proper and reasonable, and it complies with the requirements of the section not only in spirit but in letter, and it is so held.
The second reason relied upon to prove the unconstitutionality of the 16th Amendment is the claim that it is not self-executing and therefore unconstitutional. The claim is that there is no provision made for the publication of the proposed amendment for three months previous to the time of the general election at which the vote is to be taken upon the same; that by the language of the amendment there was a necessity of legislative action before the proposed amendment could be voted upon. The words in the proposed amendment which, it is claimed, show the necessity of legislative action before the pro
“Shall be published as the legislature may provide for three months previous to the general election.”
Before entering upon the discussion of this branch of the proceeding, it may be well to observe that during the last fifty years or more state Constitutions have been usually drafted upon a different principle than in the earlier part of our history. Vol. 6, R. C. L. § 53, has the following to say with reference to this:
“When the Federal Constitution and the first state Constitutions were formed a Constitution was treated as establishing a mere outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens, but leaving all matters of administration and policy to the departments created by the Constitution. This form of the organic instrument gave rise to a general presumption that legislation was necessary in order to give effect to the provisions of the Constitution, and that its terms operated primarily as commands to the officers and departments of the government. During the last fifty years state Constitutions have been generally drafted upon a different principle, and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments. Accordingly the presumption now is that all provisions of the Constitution are self-executing." Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 64 Pac. 692, 69 Pac. 77.
It may be observed that the .Constitution of the state of North Dakota comes largely within the meaning of this language; that our Constitution is really, to a large extent, a code of constitutional law and this applies generally to the amendments thereto. Upon a close examination of our Constitution it will be found that it largely supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duties which it imposes may be enforced without aid of legislative enactment, and is thus self-executing. Such rule finds support in the following authority: Davis v. Burke, 179 U. S. 399, 45 L. ed. 249, 21 Sup. Ct. Rep. 210; Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 64 Pac. 692, 69 Pac. 77;
Applying this rule to the 16th Amendment, it will be seen that the right which is granted may be enjoyed without the necessity of additional legislation. The rights to be enjoyed are fully set forth in the 16th Amendment. It is also clearly set forth what steps are to be taken to effect the enjoyment of such right. Both the first and second clause of the amendment make complete provision as to what shall be done to enjoy the right granted. It is only necessary to read each of them to understand that in the amendment itself is incorporated every step necessary to be taken to enjoy the right granted. The plaintiff claims there is an exception to this in one regard. That is, that there remains to be specified by the legislature how the amendment shall be published and on this ground claims there is something for the legislature yet to do before the amendment becomes operative and claims, therefore, it is not self-executing. In this contention, we think the plaintiff is mistaken. We are of the opinion that it is perfectly proper to make publication of the proposed amendment under § 3188 of the Political Code, Compiled Laws 1913. This chapter is 41; the title to it is “Amendments to Constitution;” the title of § 3188 is “Amendments to be Published.” The section read's thus:
“Whenever any amendment to the Constitution of this state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month and four times in the third month.”
Section 3189 provides that the secretary of state shall designate the papers in which such publications shall be made. Section 3190 provides for fees for publications. This is a complete law providing for the publication of amendments to the Constitution, and is, in our opinion, a sufficient law under which to publish the 16th Amendment. It has been on the statute books since 1899. It is not inconsistent with any provision of our Constitution nor the provision of any amendment
We are of the opinion that there is a sufficient publication of any proposed constitutional amendment, including the 16th Amendment, if published in accordance with the provisions of chapter 41 of the Political Code, Compiled Laws 1913. We hold, therefore, that the 16th Amendment Is- self-executing, and is a part of the Constitution of the state. There -are other major reasons why the 16 th Amendment has
The will of the legislative assembly fijefore which the 16th Amendment was first proposed and by it passed and of the succeeding legislative assembly to which it was lawfully presented and by it passed should not be lightly disregarded, and the will of the people in favor of the adoption of it as expressed at. the'general election when it was submitted to them, and approved by a majority of their voters, is a matter of the greatest importance and must be taken into consideration; for the determination of the people by giving a favorable and majority vote to the 16th Amendment together with the will of the legislature, as above shown to have been lawfully expressed, is the substance of the requirements to the complied with to constitute the 16th Amendment a part of the Constitution, and, as we view it, there being a valid statute in force for the publication of amendments to the Constitution and as as we have seen a sufficient entry of the proposed amendment on the house journal accompanied by the aye and nay vote, the legislative will having been lawfully expressed and a majority vote of the electors at a general election being in favor of the 16th Amendment, the same became a part of the Constitution at the time of its adoption by a majority of the electors voting at the general election and was, in all respects, self-executing.
There is a rule of construction applicable to changes in statutory law which is that in considering the amended statute, inquiry may be directed to the old law to determine what defects, weakness, or evils existed under the old law which the new is designed to correct, and the same rule has been frequently applied in the interpretation of constitutional provisions. Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. ed. 1233; Washington v. State, 75 Ala. 582, 51 Am. Rep. 479; Shohoney v. Quincy, O. & K. C. R. Co. 231 Mo. 131, 132 S. W. 1059, Ann. Cas. 1912A, 1143; State ex rel. Board of Education v. Brown, 97 Minn. 405, 5 L.R.A.(N.S.) 327, 106 N. W. 477.
There is- much other authority along the same line. The particular
Again, in construing the 16th 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.
We will now examine another reason relied upon by plaintiff to show that the 16th Amendment is not self-executing; it was one of the reasons given by this court to demonstrate that the 16_th Amendment was not self-executing in the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. We quote the language of the court in that case as follows:
“And this leads to another and probably all-sufficient reason in itself to declare this provision not self-executing, strongly evidencing the legislative intent that future legislation was necessary to make it effective. We refer to the percentage required, and which is uncertain. A petition must contain signatures ‘of at least twenty-five per cent.’ This is merely declaratory of a minimum leaving to subsequent legislation to fix the minimum which must be ‘at least twenty-five per cent,’ and to classify and vary accordingly, if necessary, any required percentage to initiate different amendments to the Constitution as legislative wisdom may regard necessary in view of widely different constitutional subject-matter. To illustrate, it is probably within the grant of legislative authority by subd. 2 for the legislature to declare*473 necessary a higher percentage to initiate a constitutional amendment to operate to change the seat of government of this state or the state university,” etc.
The court in- that case was discussing subdivision 2. The only requirement under subdivision 2 is that an “initiative petition be filed containing signatures of at least twenty-five per cent of the legal voters in each of not less than one half of the counties of the state.”
It is plain to see that such petition could relate to any subject-matter, and if the Constitution is sought to be amended under the provisions of subdivision 2, the rale therein laid down as to the petition must be followed. We do not agree with the language in state ex rel. Linde v. Hall that the percentage is uncertain. The percentage is stated in no equivocal terms. The petition must contain not less than twenty-five per cent. When such petition does contain twenty-five per cent, it is a proper and legal petition under the 16th Amendment. Nothing more is required, nothing less is legal. A petition might contain more than twenty-five per cent, but it must not contain less. Neither can the minimum per cent required be increased by the legislature. For instance, if the legislature should pass a law providing that where under subdivision 2, a constitutional amendment is submitted to remove the state university from Grand Forks to some other city of the state, such petition should contain at least fifty per cent of the legal voters in each of not less than one half of the counties of the state, it is easily seen that such provision would increase the minimum of petitioners provided in the 16th Amendment by one hundred per cent. Under such a law passed by the legislature, the minimum would not be twenty-five per cent but fifty per cent of the voters. If such a law were passed, it is plain that it would directly contravene the terms of the 16th Amendment which declares twenty-five per cent the minimum required. The legislature cannot, by any act, change the minimum of percentage of the voters required as fixed by subdivision 2 of the 16th Amendment. Whenever twenty-five per cent of the legal voters in each of not less than one half of the counties of the state sign a petition to amend the Constitution in regard to any subject-matter, they have complied with the constitutional requirement of the 16th Amendment which is a part of the Constitution, and are
When twenty-five per cent of the legal voters in not less than one half of the counties of the state had signed the petition in question and delivered it to and placed it in the custody of the secretary of state, there is much respectable authority that such paper or petition became filed even if the officer whose duty it is to file such paper or petition did not place his filing mark or indorsement, upon the instrument, such marking or indorsement being considered merely a memorandum or evidence that the filing had been made. Covington v. Fisher, 22 Okla. 207, 97 Pac. 615; State v. Heth, 60 Kan. 560, 57 Pac. 108; Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20; Wilkinson v. Elliott, 43 Kan. 590, 19 Am. St. Rep. 158, 23 Pac. 614; Jacksonville Street R. Co. v. Walton, 42 Fla. 54, 28 So. 59; Oats v. State, 153 Ind. 436, 55 N. E. 226; Bettison v. Budd, 21 Ark. 578.
The secretary of state, according to this authority, would add nothing to the validity .of the filing of the petition by placing his filing mark or memorandum or evidence that the filing was made upon such petition. Every act of the petitioners in singing the petition or procuring it to be signed and the delivery of the same into the custody of the secretary of state, which, according to above authority, constituted filing, was the legislative act of the petitioners with which, as we view it, the court could not interfere by injunction or otherwise. As we understand the matter, the secretary of state did place his filing mark or indorsement upon the petition, but, according to the authority we have cited, that would add nothing to it except that it is evidence that the petition was filed. The 16th Amendment to the Constitution provides that the petition should be filed with the secretary of state. The petition is thus on file with an executive officer of the state and the Constitution and law of the state provide his duties with reference thereto. The Constitution of the state of North Dakota declares that the powers and duties of the secretary of state shall be as prescribed by law. It is a duty imposed by the laws of the state of North Dakota upon the secretary of state to certify to the county
The reasoning which we have applied to the 16th Amendment to the Constitution applies with equal force to the 15th Amendment to the Constitution which is known as the initiative and referendum power reserved to the people, or the power to initiate laws independent of the legislature and to exercise the power of initiative and referendum in the manner provided in the 15th Amendment. The conclusion with reference to the 15th Amendment must.be the same as that at which we have arrived with reference to the 16th Amendment to the Constitution and each of such amendments are held to be an effective part of the Constitution and operative and self-executing.
An enacting clause, as we view it, is neither necessary nor proper in adopting a constitutional amendment under subdivision 2 of the 16th Amendment. An enacting clause is necessary and proper in initiative bills, and is provided for in the 15th Amendment, or bills introduced in the legislative assembly, but have no application to constitutional amendments. The general rule is that constitutional provisions are mandatory. Section 202 of our Constitution is to that effect, though in the case of Kermott v. Bagley, 19 N. D. 345, 124 N. W. 397, § 109 of the Constitution was construed to be permissive rather than mandatory. As we view it, the 16th and 15th Amendments are. effective and operative and self-executing and a part of the Constitution. Each
Neither the plaintiff himself nor anyone on whose behalf he seeks to maintain this proceeding has any personal or pecuniary interest involved. The application for injunction is in all things denied and this proceeding is dismissed.
This case arises upon an original petition filed in this court entitled “The State of North Dakota ex rel. Treadwell Twichell, and Treadwell Twichell, Individually, Plaintiffs, ■ versus Thomas Hall, Secretary of State and Thomas Hall, Individually, Defendants.” In response to the prayer of the petition an order to show cause was issued directed to the defendant requiring that cause be shown why he should not be enjoined from further publishing certain proposed constitutional amendments, from putting the same upon the ballots and submitting them to the voters to be voted upon at the next general election, and from taking any action whatsoever under certain petitions looking toward the submission of the amendments. Upon the return day the defendant appeared, represented by the attorney general of the state, and moved to dismiss the petition on the ground of the lack of jurisdiction of the court to grant the relief prayed for and of the lack of jurisdiction of the subject-matter and the parties upon the cause of action alleged. In order that there might be a complete hearing, a demurrer and answer were also filed; the demurrer being upon the ground that the petition does not state facts sufficient to constitute a cause of action; that the court has no jurisdiction over
The allegations of the petition, in so far as they are material, show that the plaintiff is a citizen, a taxpayer, and elector; that he had appealed to the attorney general for permission to institute this proceeding in his name as a representative of the state, but that the attorney general had refused; that during the year 1918 certain initiative petitions looking toward the amendment of the Constitution in various particulars were circulated and signed by voters exceeding in number twenty-five per cent of the legal voters of the state in more than one half of the counties of the state; that it is the intention of the defendant to submit the amendments embraced in said petitions to the people to be voted upon at the ensuing general election; that the matters involved affect the legislative franchise of the people of the whole state and the validity of the amendments to the Constitution which were adopted in 1914, authorizing the initiative and referendum as to laws and constitutional amendments, and which are designated as articles 15 and 16 of the Amendments to the Constitution.
The first question for consideration under the issues is that of the jurisdiction of the court to entertain the proceeding and grant the relief prayed for. This question was fully discussed in the case of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, and it was there held that the court had jurisdiction to determine such a matter in a proceeding brought before the election was held. While the correctness of this ruling is seriously questioned by the defendant, it will not be necessary, in view of the conclusion of the majority upon the merits, to re-examine the authorities bearing upon this phase of the case, or to pass again upon the question. We shall therefore refrain from expressing an opinion thereon.
Hpon the merits, two main questions are presented by the petitioner. He urges first, that articles 15 and 16 of the Amendments to the Constitution were not legally adopted, in that they were not entered in
Second, it is contended that article 16 is not self-executing, and that, inasmuch as no legislation has been enacted putting it into effect or facilitating its operation, no proceedings can be had thereunder. If this contention were sustained it would follow that any attempt to exercise the rights sought to be conferred upon the people to initiate the constitutional amendments in question would be necessarily void and of no effect.
Section 202 of the Constitution provides that any proposed amendment which shall be agreed to by a majority of the members elected to each of the two houses “shall be entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly to be chosen at the next general election . . . .” As this language is interpreted by plaintiff’s counsel, it requires entry upon the journal of only one house. We will not stop to inquire whether this is the correct interpretation of the language used, but will pass immediately to the main question, which is the meaning of the expression “shall be entered on the journal.” It appears that the resolutions providing for the amendments in question were not spread at length upon the journals of either house of the legislative assembly, but that, during their pendency and upon their passage in both houses, they were treated as bills and referred to by entries such as the following: “Senate Bill No. 153. A Concurrent Besolution Amending the Constitution of the State of North Dakota, Providing for the Future Amendment Thereof.” The contention is that this identifying reference is not a sufficient entry upon the journal to satisfy the requirements of § 202 of the Constitution. The literal interpretation of the section, it must be admitted, supports the contention of the plaintiff but the decided weight of judicial authority as well as reason appears to us to be contrary to the literal interpretation. Though courts are generally concerned with ascertaining the actual intention of the framers of constitutions in order that effect may be given thereto, it will sometimes happen that too strict an adherence to a literal inter
Counsel for the plaintiff insists, however, that the provision above interpreted was taken from the Constitution of Iowa where it had previously been interpreted as requiring the entry in full upon the journal (Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609), and that this court is consequently bound by the previous construction placed thereon by the Iowa court. In view of the fact, however, that
' Passing now to a consideration of tbe second question presented; namely, as to whether or not article 16 of the Amendments to tbe Constitution is self-executing, it must first be noted tbat tbis branch of tbe case involves the main question decided by tbis court in tbe case of State ex rel. Linde v. Hall. 35 N. D. 34, 159 N. W. 281. Tbat case involved tbe validity of a petition for an amendment to tbe Constitution locating tbe capitol at New Rockford instead of Bismarck. It was there held tbat tbe amendment, article 16, under which tbe petition bad been circulated, was not self-executing and that tbe petition was consequently void. Tbe doctrine of stare decisis is earnestly invoked by tbe petitioner in tbe instant case and it is contended tbat, if tbe question can be regarded as fairly doubtful, tbe court should follow tbe decision in tbe ease referred to. We agree with tbe general reasons advanced by counsel for an adherence to tbe rule of stare decisis; but, with due respect for tbe opinions of tbe members of tbis court participating in tbat decision, we cannot conscientiously reach a like result, and, inasmuch as there is involved-in the general question tbe meaning and effect of an important portion of tbe fundamental law of tbe state, we feel called upon to re-examine tbe question and to state anew what we consider to be tbe meaning and fair import of tbat portion of tbe Constitution referred to. As was said by tbe supreme court of Wisconsin in tbe case of Pratt v. Brown, 3 Wis. 603: “But when a question arises involving important private or public rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only tbe right, but tbe duty of tbe court, when properly called upon, to re-examine tbe questions involved, and again subject them to judicial scrutiny. We are by no means unmindful of tbe salutary tendency of tbe rule stare decisis, but at tbe same time, we cannot be unmindful of tbe lessons furnished by our own consciousness, as well as by judicial history, of tbe liability to error, and the ad
A careful study of the opinion of this court in State ex rel. Linde v. Hall, supra, leads us to the conclusion that the interpretation of the amendment in question was so extreme in the direction of nullifying its force that it ought not to stand as the final expression of this court. Before calling attention, however, to those portions of the main opinion in that case which have the effect stated, it might be well to state the rules for the construction and interpretation of constitutional provisions and amendments to which, it seems to us, proper attention was not given in the decision referred to.
It is elementary that the fundamental purpose of all judicial construction is to ascertain and give effect to the intention of the framers and of the people who have adopted the particular instrument or amendment. 8 Cyc. 730; Cooley, Const. Lim. 5th ed. p. 68; Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23. The
Initiative and referendum provisions contained in the Constitutions of the various states have generally been held to be self-executing. See Arkansas Tax Commission v. Moore, 103 Ark. 48, 145 S. W. 199; Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65; Stevens v. Benson, 50 Or. 269, 91 Pac. 577; State v. Langworthy, 55 Or. 303, 104 Pac. 424, 106 Pac. 336.
The seemingly contrary decision in Oklahoma in the case of Ex parte Wagner, 21 Okla. 33, 95 Pac. 435, 18 Ann. Cas. 197, is stated by the court to be due to the action of the constitutional convention which, upon being reassembled, modified the- initiative and referendum feature of the Constitution by striking therefrom the provision expressly declaring it to be self-executing and substituting, in lieu thereof, the following: “The legislature shall make suitable provisions for carrying into effect the provisions of this article.” (Okla. Const, art. 5, § 2. It is stated in the opinion that this was done as a concession to the views which were, at the time, being presented to- the Department of Justice of the Eederal government in an effort to convince that
The provisions contained in some of the Constitutions reserving initiative and referendum powers to the voters of municipalities and districts as to local matters are usually held to be not self-executing for the reason that the manner of exercising the powers is directed to be prescribed by general laws. See Schubel v. Olcott, 60 Or. 503, 120 Pac. 375; State ex rel. Bradford v. Portland R. Light & P. Co. 56 Or. 32, 107 Pac. 958; Long v. Portland, 53 Or. 92, 98 Pac. 149, 1111; State ex rel. Dotta v. Brodigan, 37 Nev. 37, 138 Pac. 914. The holding in the last case was inadvertently misstated in the opinion of Mr. Justice Goss in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. It was not held, as there stated, that the entire initiative and referendum amendment was not self-executing.
Where constitutional provisions are held to be self-executing, it is in response to the apparent intention of the framers and the people who adopted them “to put it beyond the power of the legislature, to render them nugatory by refusing to enact legislation to carry them into effect.” Mitchell, J., in Willis v. Mabon (Willis v. St. Paul Sanitation Co.) 48 Minn. 140, 16 L.R.A. 281, 31 Am. St. Rep. 626, 50 N. W. 1110. Though a particular provision is self-executing, the 'legislature has ample power to pass such legislation as may be needed to simplify the procedure, to safeguard the right from abuse, and to render the various steps definite (Cooley, Const. Lim. 5th ed. p. 122; Willis v. Mabon, supra; Stevens v. Benson, 50 Or. 269-274, 91 Pac. 577, but not to limit, defeat, or nullify the right.
Reading article 16 of the amendments to the Constitution of North Dakota in the light of the foregoing elementary principles, and the authorities dealing with like questions, it becomes clear that the intention and purpose was to secure to the voters a right which had not
Concerning the above underscored portions, the court, in the case of state ex rel. Linde v. Hall, supra, found first: That inasmuch as no definite date or period of time was set forth for the filing of petitions, the legislature might require a petition to be filed at any period of time before the election, not shorter, however, than six months. The statement in the opinion is (page 51) : “It is doubtful if it was in
Again it was said the requirement that the petition should contain the signatures of “at least twenty-five per cent of the legal voters in each of not less than one half the counties of the state” evinced an intention to give to the legislature power to prescribe a larger number of signers than twenty-five per cent and to increase the number of counties requisite to more than one half. The statement in the opinion
The former decision of this court gives the legislature a free hand to prescribe a percentage so high as to make the right entirely unavailing. It in effect reads into the amendment the alternative clause "or such higher precentage as the legislature may require” and thereby implants within it the seeds of its own destruction. We are aware of no rule of constitutional construction that authorizes such a light consideration of the security of rights clearly intended to be protected by the plain language of the Constitution; and we are completely unable to justify the result in the light of the first rule of construction which regards, above all else, the purpose of those who adopted the amendment. Would similar reasoning be adopted in construing a suffrage provision where the minimum qualifications as to age and residence are expressed in like manner? If so, the legislature would be free to disfranchise electors at will. If the logical requirements of
But aside from the objection that the construction is in derogation of the right, we believe that the language itself is not fairly susceptible of the meaning previously placed thereon by this court. In the Constitutions of the various states providing for the initiative and referendum there are three main forms of expression used to fix the number of petitioners: (1) Not more than-per cent shall be required, etc. (See Constitutions of Arkansas, Oregon, South Dakota and Missouri.) ; (2) The people shall have the right upon a petition signed by not less than-per cent, etc. (See Constitutions of North Dakota, Colorado and Michigan.) ; and (3) Upon a petition signed by - per cent, etc., — i. e., the percentage is absolute, (See Constitutions of Oklahoma, Nebraska, California, Arizona, Washington and Ohio.) In the group in which North Dakota falls in the classification according to form of expression, there are but two additional states, and in both of them the provisions are self-executing, —one, Colorado, by express declaration, and the other, Michigan, by unmistakable intent. See Thompson v. Vaughan, 192 Mich. 512, 159 N. W. 65, where it was held self-executing. Whatever may be thought to be the best and most appropriate form of expression, it would seem that the only reasonable conclusion is that it was intended by the clause in question to fix the constitutional requirements of a valid petition, and not to delegate to the legislature the power to make them. The first form of expression referred to doubtless gives to the legislature the right to lower the percentage, but not to raise it; but research will disclose that the provisions containing this form of expression are nevertheless generally self-executing. • -
Still another expression was thought to evidence an intention to postpone the operation of the right until the legislature should- see fit to pass laws to facilitate its exercise. It is said that it is required that the petition shall have been “properly filed.” As will be demonstrated later in the course of this opinion, the term “properly” is to be read in connection with other constitutional provisions governing the exercise of the initiative right and only means filing with the secretary of state.
Then comes the provision concerning which there is clearly room for construction. “The proposed amendment or amendments shall be published as the legislature mcmj provide for three months previorrs to the general election, and shall be placed upon the ballot to be voted upon by the people at the next general election.” It was doubtless intended here to require publication of the initiative amendment and it is also cleár that the legislature was authorized to determine the manner of publication, the time only being fixed by the Constitution. In this respect, the amendment corresponds exactly with the similar provision in § 202 of the pre-existing Constitution, the same being § 1 of the amendment in question. The term “may,” however, which usually imports privilege or duty as applied to those to whom it is addressed, or which generally imports the future when used to signify tense, is
The inquiry arises: Why was the expression used “as the legislature may provide ?” Obviously, had it been said “as provided by law” the amendment would have incorporated the existing law on the subject of publishing constitutional amendments prior to the legislative session to which they referred. To have done so would have been to adopt by reference for all time the existing provisions of law relative to publication. 36 Cyc. 1152; 2 Lewis’s Sutherland, Stat. Constr. 2d ed. § 405. It was probably thought desirable to avoid doing this; for, as wilLbe noted, the wisdom of continuing the present manner of publication has been gravely doubted by the legislature. See House Bill 312 of the 13th Legislative Assembly, which passed both houses. It reduced the number of publications from six to three and substituted one daily paper in the state in lieu of one weekly paper in each county. If the term “may” may be used, however, as it was used, it would indicate that any change that might later be made in the manner of publication of amendments under § 1 could also be made applicable to amendments under § 2 of the amendment. In short, it would seem to be the correct interpretation of § 2 of the amendment in this respect that the publication shall be for three months previous to the general election, and in such manner as the legislature shall from time to time provide. This construction leaves the legislature as free in providing the manner of publication under § 2, as it has been from the beginning under § 1.
While it was suggested in the opinion of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, that constitutional provisions operate
Chapter 41 of the Political Code provides for the publication of constitutional amendments prior to the election of the legislative assembly to which they are referred in accordance with § 202 of the Constitution. The statute was adopted in 1891 and is as follows: "Whenever any ame'iidment to the Constitution of this, state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month, and four times in the third month.” If the surplus clause (not italicized above), which is merely descriptive of the “general election” prior to which the publication is to be made, be omitted, the statute would be applicable to the publication of amendments proposed by initiative petition and by the legislature as well. The qualifying clause, “after the session in which such amendment is first proposed,” is only descriptive of the term, “general election,” and at the time it was inserted there was no way to initiate an amendment except by resolution in the legislative assembly. At that time the only way a constitutional amendment could be “referred to the legislative assembly to be chosen at the next general election” was by the preceding legislative assembly. So, for this reason, the descriptive expression is, in reality, surplusage and the statute would always have had exactly the same meaning if it had been omitted. It is certain that it was never used in the statute to distinguish an amendment referred to the legislative assembly by a pre
In view of the publicity that necessarily results from the general circulation of petitions, and the similarity in other respects between the requirements for publishing proposed amendments originating in the legislature and those initiated by petition, the argument that attempts to prove diverse intention as to the publication of the two kinds of amendments is altogether too technical to be considered meritorious. In the Ployhar-Blakemore resolution which failed of passage in 1913, and which the minority members seem to regard as self-executing, the existing statute as to publication was certainly in contemplation. It was there required that proposed amendments should be “published as provided by law, for three months,” etc. There is no ground for assuming that the legislature was interested in dis
In the case of Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367, an act of the legislature of Washington, submitting a proposed amendment to the Constitution required the secretary of state to publish notice of the submission for “three weeks next preceding the election.” . The Constitution, however, required the publication “for at least three months next preceding election” and it was held that the publication by the secretary of state for three months as required by the Constitution was a valid publication, notwithstanding that the law directed publication for but three weeks.
We believe that much of the difficulty with which the court was confronted in its previous construction of the amendment in question was due to an apparent inclination to regard the amendment as but an isolated portion of the Constitution, having no relation to anything else therein contained. This difficulty, it seems, would largely be avoided if the amendment in question were read in connection with the other kindred provisions of the Constitution which was adopted at the same time. Both provisions have, at their foundation, the same political principle, that of retaining in the voters a portion of the governmental power which had previously been vested in the legislature alone. The reserved powers are expressed in separate amendments mainly, if not solely, for the purposes of securing separate expressions of the voters on the advisability of the reservation as applied to legislation and to constitutional amendments, and to make more rigid requirements as to the latter. It was doubtless thought that there might be many who would favor the reservation as to the legislative power, but not as to constitutional amendments. An examination of similar reservations expressed in the Constitutions of our sister states shows that in several of them the power to propose legislation and constitutional amendments has .been reserved in a single section corresponding to article 15 of the amendments to our Constitution. The entire procedure requisite for the exercise of the power for either purpose is outlined in the one amendment. See Cal. Const, art. 4, § 1; Mo. Const, art. 2, § 57; Or. Const, art. 4, § 1; Okla. Const, art. 5, § 1. The procedural machinery of article 15 is adequate for initiative petitions of either sort; but, in
A constitutional provision must not be permitted to fail for the sole reason that every detail of procedure has not been provided for. It was conceded in the opinion of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, that had article 16 been expressly declared to be self-executing, all of the defects mentioned in the opinion would have been overlooked by the court. As we regard the matter, there is no particular magic in words, and, according to the most eminent authority upon the subject, constitutional provisions are self-executing or not self-executing, depending upon whether or not they incorporate adequate rules for the security and protection of the rights granted or reserved. Cooley, Const. Lim. supra. The addition of the expression referred to would have supplied no deficiency of operative procedure. It must be remembered that all provisions of a Constitution are self-executing in so far as they may be given effect through ordinary legal
Mere difficulties of operation do not afford sufficient reason for the failure to carry out constitutional provisions. In the case of State ex rel. Hunt v. Hildebrandt, 93 Ohio St. 1, 112 N. E. 138, the supreme court of Ohio issued a peremptory writ of mandamus directing the secretary of state to cause to be printed and distributed arguments pro and con on proposed amendments to the Constitution, though the Constitution which imposed the duty upon him had not provided in detail for the procedure or even for the source from which the arguments should come or be selected. On the general question the court uses language that quite effectively disposes of much of the argument in this case which has been thought to demonstrate the unworkable character of the amendment in question without the aid of legislation. The court says: “That it may be difficult of operation is not a sufficient reason for refusing to obey the mandate of the Constitution of the state. Language could not have been used by the members of the constitutional convention or by the electors of the state that would give clearer expression to their intention and purpose in reference to this subject-matter. They undoubtedly had in mind the practical impossibility of covering every detail of the operation of the provisions of the organic law of the state; that some difficulties might arise in relation thereto that could be obviated by laws that would facilitate, but not limit or restrict, their application, and for that reason and to this extent, but no further, the general assembly is authorized to act. This constituí tional provision is a limitation upon the power of the general assembly, and for that reason, if for no other, its framers and the electors of the
The foregoing language was used, it is true, with reference to a constitutional provision that was expressly declared to be self-executing, but it none the less expresses the principle which should govern in the construction of amendments of the general character of the one under consideration in that case. The amendment before us is of that character and the expression of the Ohio court meets our approval.
We think it proper to observe that, in the previous discussion of this general question, too much emphasis has been placed upon the presence or absence of an expression to the effect that a given amendment shall be self-executing. Until amendments were adopted providing for the initiative and referendum, it was very seldom that express language would be employed to indicate the self-executing character of a particular constitutional provision; but it would seem with the advent of the initiative and referendum, it was feared that unless some such provision were contained in the Constitution there was danger that the legislature, whose powers were directly involved and possibly the courts, would make inroads upon the right secured, and it was. out of an abundance of caution that such express provisions came to be inserted. We think that the absence of such a provision is not in the least indicative of an intention that the amendment should not be self-executing.
This opinion has extended beyond the bounds of length within which we had hoped to be able to express the principles deemed decisive of this litigation, but a due respect for the opinions of the members of this court participating in the former decision requires an ample statement of the reasons which have led to the overruling of that decision
Addenda, filed February 20, 1919.
The foregoing opinion contains all that I had expected to say upon this important subject. Since it was written, however, additional dissenting views have been expressed that were not in anticipation when the original opinions were prepared and filed. These seem to call for an additional word in the interests both of clarity and of historical accuracy. This I believe to be ample reason for departing from the rule, which should be observed generally, of refraining from referring directly to a dissenting opinion when expressing the views of the majority.
When the foregoing opinions were filed, — now almost four months ago, my brother Christianson, now Chief Justice, reserved the privilege of extending his dissenting remarks which were filed at the time; to which request, of course, there was no objection. His extended dissent appearing below has just been filed; hence these addenda.
In the dissenting opinion just filed, there is an implied criticism of the legislature for not having provided adequate machinery for soldiers voting. It is intimated that, had the legislature anticipated a vote upon so important a matter as constitutional amendments, it would have provided such machinery. The legislature did pass a law upon this subject (chapter 6, Laws of Special Session of 1918), and there were three amendments to be voted upon which were submitted by the legislature and which were in no way dependent upon this decision. I take no part in this criticism and think it groundless.
There is an omission from the dissents which seems to me to be inconsistent with proper procedure in such cases as this, but this is a matter for the individual judge to consider for himself. I am consequently not disposed to do more than state the fact. While many authorities are cited which seem to me to have no bearing whatever on the case — one opinion even drawing upon sources wholly nonlegal and unofficial for authority in a matter concerning which it is not proper
There is still another significant omission. I call attention to the fact that, notwithstanding the earnest consideration and the deliberate thought which have been directed to the questions presented in this case • by our dissenting associates, they have not renewed their expression of assent to the interpretation placed upon the amendment in question in the main opinion in the capital removal case, unless it be by the general statement of adherence to the former opinion. Whether or not they are still of the opinion that the legislature can legally require an initiative petition to be signed by seventy-five per cent of the voters before it can be considered a legal petition in the face of the language of the amendment which clearly provides for a twenty-five per cent petition, may be left to the reader to infer.
It is said that no one has ever contended that the constitutional provision in this case is meaningless and inoperative as a constitutional provision and that this court, in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281, had expressly recognized it as a law of the state and as such operative as a basis for legislation. Perhaps it was not contended by the court, in State ex rel. Linde v. Hall, supra, that the provision was meaningless or inoperative, but this court nevertheless did hold, not only that power was given to the legislature to control the manner of publication, but that power was also given to require a higher percentage of the voters upon the petition than required by the
It is further stated that it is well to remember that the primary purpose of such amendment is to reserve to the people certain governmental powers. With this statement I am wholly in accord. My objection to the previous decision of this court is that it ignores this primary purpose.
One other reference to the dissenting opinions and I shall conclude this uninviting chapter. Eesort is frequently had in all the discussion of the question under consideration to a peculiar and wholly inadmissible form of logic. The various bills or resolutions looking toward the adoption of the initiative and referendum are marshalled forth and it is discovered that the Gibbens Bill (the one under consideration) differs from all the others in that it does not contain these or similar words: “This amendment shall be self-executing.” Ergo, it was chosen from the lot for that reason. Then the conclusion is hastily drawn that the legislature must have intended to tie a string to its operation. Before this argument can be validated, those who use it must eliminate all other substantial differences (and there are many) between the various bills considered, and, furthermore, they must demonstrate that the others were all self-executing with regard to the constitutional amendment feature. This is probably as doubtful with respect to the rejected Blakemore Bill, for reasons which I will not take space to enumerate here, as in regard to the one in question.
When this case is stripped of all redundancy, it resolves to the simple proposition as to whether or not there exists a law under which the amendments could be published for three months previous to the election. It is not primarily a question, even, of self-execution, but of execution under the existing laws governing the particular subject of amendments. When the court originally passed upon the question in the capital removal case every argument that tended in the remotest degree to evidence an intention to postpone the operation of the amendment was advanced and tenaciously adhered to, but now those who express views opposed to the majority seem to draw their main, if not their sole, argument, from the expression “shall be published as the legislature may provide for three months previous to the general elec
The holding of the majority that a constitutional provision may be given effect under pre-existing general legislation, even where authority is vested in the legislature to legislate concerning the same subject-matter, is fully substantiated by the following authorities (in some of these it will be noted that the mandate for future legislation was much stronger than in the instant case) : State ex rel. Goodin v. Thoman, 10 Kan. 191; Logan v. Ouachita Parish, 105 La. 499, 29 So. 975; State ex rel. Gordon v. Moores, 70 Neb. 48, 96 N. W. 1011, 99 N. W. 504; People ex rel. McClelland v. Roberts, 148 N. Y. 360, 31 L.R.A. 399, 42 N. E. 1082; Rodwell v. Rowland, 137 N. C. 617, 50 S. E. 319.
The holding of the majority gives force and vitality to an important portion of the fundamental law of the state, and, in my judgment, it but carries out the manifest intention of the Constitution.
Dissenting Opinion
(dissenting). This is an application for a writ of injunction to restrain the secretary of state from submitting to a vote of the people various proposed constitutional amendments which have been sought to be instituted by a popular initiative and by popular petitions. The applicant invokes the original jurisdiction of this court, and an order to show cause has been issued.
The respondent moves to dismiss the proceedings upon the ground “that this court has no jurisdiction to grant the relief prayed for herein or over the subject-matter of the action or the parties herein, upon the alleged cause of action as stated in the petition.”
He also, and in case his original challenge to the jurisdiction of this court is denied, demurs to the petition on the grounds:
“(1) That the plaintiff herein does not state facts sufficient to constitute a cause of action or grounds for relief herein.
“(2) That the court has no jurisdiction over the subject-matter of this action or over the person of the defendant as such upon the allegations of the petition herein.
“(3) That the said plaintiff has no legal capacity to institute or maintain this action.”
All of these matters were thoroughly discussed in the exhaustive
It is true that the petitions which have been filed with him contain the signatures of many thousands of voters. It is no doubt true, as has been publicly stated by my associate, Mr. Justice Eobinson, that he, the said justice, made a pre-election promise to overrule the decision in the case of State ex rel. Linde v. Hall, supra, and that he would not have been elected if he had not'done so, and it may be true, as asserted by Mr. Justice Eobinson, that the secretary of state was conversant with this fact. I have yet to -learn, however, that the making of any such pre-election promises were ever contemplated by the framers of our government or that a show of force in the shape of a numerously signed petition should serve as a proper justification for a violation of my oath of office and a reason why I should hold that to be the law which I do not believe to be the law. It may also be true that the secretary of state has already gone to a great expense in printing the proposed constitutional amendments, but it is not shown that the petitioner was a party thereto, or before he brought his present action had any knowledge that such secretary would take upon himself the interpretation of the law and consider a seriously considered opinion of -the supreme court of this state a mere scrap of paper. If, indeed, wanton and unnecessary expense has been incurred it has been by the secretary of state, and not by the voters of this state or by the petitioner, all of whom were justified in believing that the reign of law was still among us.
I am fully satisfied with the correctness of the decision of this court in the case of State ex rel. Linde v. Hall, supra, and of that of the supreme court of Indiana in the case of Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 19150, 200, and I believe that we have long since passed the time when it is expedient or wise for the courts to administer the law on the basis of their own individual opinions and to change the established law with every temporary wave of popular opinion.
“Equity is a roguish thing. For law we have a measure, and know what we trust to. Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. ‘Tis all one as if they should make his foot the standard for the measure we call chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. ‘Tis the same thing in Ohancellor’s conscience.”
I may, perhaps, be justified in using as my own the language of the great English chancellor, Lord Eldon, when in 1818 and in the case of Gee v. Pritchard, 2 Swanst. 402, 36 Eng. Reprint, 670, he said: “Nothing would inflict on me greater pain in quitting this place than recollection that I had done anything to justify the reproach that the equity of this court varies like the chancellor’s foot.”
For the reasons above advanced I am of the opinion that the writ should issue and that the prayer of the petitioner should be granted. I do not believe that the constitutional provision is self-executing. I express no opinion upon the question whether the amendment itself was legally adopted, as I do not consider that the decision of this point is necessary at this time.
Concurrence Opinion
(concurring). In this case I fully concur in the well-considered opinions by Justice Grace and Justice Birdzell. This matter presents a petition by a private citizen to restrain the secretary of state from publishing certain proposed constitutional amendments and submitting the same to the voters at the next general election.
The petition for the submission of the amendments was duly filed March 3, 1918. It is signed by a majority of all the voters. It was given to one newspaper in each county to be published six times as provided by law during three months prior to the election.
The proposed amendments were filed in the office of the secretary of
The section consists of two paragraphs. The first relates to the submission of constitutional amendments by the legislative assembly; the second, to the submission of amendments on a petition. The objections are:
(1) That the amended § 202 is void because it was not entered on the journal of the house in accordance with the original §' 202.
(2) That § 202 as amended consists of two subjects and two amendments which should have been submitted to a separate vote.
(3) That § 202 is not self-executing because it does not provide the manner of advertising amendments.
(4) The additional reasons stated in the Capitol Removal Case, 35 N. D. 34-78, 159 N. W. 281.
In the senate journal for 1911, the amendment is everywhere entered as, “Senate Bill No. 153. A Concurrent Resolution Amending the Constitution of the State of North Dakota Providing for Future Amendments Thereof.” In the house journal for 1911, the resolution is everywhere entered in the same identical manner, and the resolution is entered at large in the Session Laws of 1911 as chapter 89. In 1913, the journals show similar entries and so it appears the concurrent resolution was adopted by two successive legislative assemblies without the changing of even a punctuation mark. And its place in the session laws gave it a publicity and permanence far greater than any entry that might have been made in the journals.
Now as the law neither does nor requires idle acts, it is manifest that the entries in the journals and in the session laws was entirely sufficient.
1. It is not true that § 202 contains two subjects or two amendments. Its subject is the future amendment of the Constitution. It provides that an amendment may be submitted either in accordance
2. In regard to- the advertisement of proposed amendments the words of § 202 are that amendments shall be published as the legislature may provide. That is in manner provided by law. As the people well knew all the amendments to the Constitution were advertised as provided by law and there was no reason for one method of advertising amendments submitted by the legislative assembly and a different method of advertising amendments submitted by petition. In voting for § 202 the people acted as a legislative body and it must be conceded that they never thought of voting for a deceptive or delusive measure that could have no force or effect until some future legislature should see fit to provide for a special system of advertising. And we must presume the legislature did not intend to submit to the people any tricky or delusive measure. However, if some lawmakers had such a nefarious design it should have no effect.
The judges are bound to give force to the manifest intention of the people — the legislative body that adopted the amendment. When the people act as lawmakers their action is governed by the accepted maxims of legislation. Like reasons doth make like laws. The Taw neither does nor requires idle acts. The law respects form less than substance. The interpretation which gives effect is to be preferred to that which makes void. In the construction of a statute where any uncertainty exists, the question is: What was the intention of the lawmakers ? In the language of Justice Field, instances without number exist where the meaning of words of a statute has been enlarged or restricted to carry out the intention of the lawmakers. Thus, in the Oregon Donation Statute, the term “a single man” was held to include an unmarried woman. The purpose of a Constitution is to give formal and authentic expression to the will of the people. Hence, Constitutions are to be construed as the people construed them in their adoption.
It is true that in the Capitol Removal Case, 35 N. D. 34, 159 N. W. 281, the court held against that part of § 202 which relates to the submission of amendments on petition. It was held to be a dead letter
Hence, it behooves the courts to give to § 202 a broad and liberal construction so as to advance and secure the purposes and intentions of those who adopted the amendment.
Finally, on the initiative and referendum question, the people have fought a good fight; they have kept the faith; they have spoken with coherence and emphasis; their intention cannot be mistaken; hence, •they have, and may exercise, the right to control their own affairs and to make their own laws and constitutions.
Petition denied and dismissed.
Dissenting Opinion
(dissenting). Under the Constitution of this state as originally adopted an amendment to the Constitution might be proposed in either house of the legislative assembly; and if the same was agreed to by a majority of the members elected to each of the two houses, such proposed amendment was entered on the journal of the house with the yeas and nays taken thereon, and referred to the legislative assembly chosen at the next general election, and if a majority of all the members elected to each house of the next legislative assem
The relator contends that the latter method is not available:
(1) Because the amendment to the Constitution, which provided such method, was not adopted in the manner prescribed by the Constitution, and, hence, is not in fact a part of the Constitution; and,
(2) Because such amendment, if legally adopted, is not self-executing; and that the amendment has never become operative for the reason that no legislation has been enacted to put it into effect.
The precise question raised by the second contention was presented to and decided by this court in State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. The decision in that case was unanimous. It was promulgated after the most careful deliberation. No case decided since I became a member of this court has received more careful consideration. The then members of the court approached the questions presented with a deep sense of the grave responsibility, as well as the solemn duty, resting upon them. My own feelings were reflected in the following statement in the opinion which I filed in the case: “The members of this court have given to this matter their most anxious thoughts and labor, and have arrived at the best conclusions honest convictions can reach. The intent of the framers and the people who adopted the constitutional provision seems too plain to admit of doubt. This being so, our duty, however unpleasant and embarrassing it may be, is equally plain. We must declare the fundamental law to be what it is. To do otherwise would be a breach of the duties we have sworn to discharge, and a violation of the Constitution we have sworn to support.” 35 N. D. 77. The judgment of the court as pronounced in that case was not an expression of the personal will of the then judges, but the deliberate declaration by this court of the will of the
The majority members refuse to apply the doctrine stare decisis, and attention is called to the decision of the supreme court of Wisconsin in Pratt v. Brown, 3 Wis. 603, and the decisions of the United States Supreme Court in the Legal Tender Cases, 12 Wall. 457, 20 L. ed. 287, to justify the position taken. The decision of the Wisconsin court involved the constitutionality of a statute. The situation involved in the Wisconsin case could not be remedied except by an amendment of the Constitution. It did not present a situation like the the case at bar, where the whole trouble could be taken care of by legislative enactment. In fact the Wisconsin court expressly pointed out that the questions involved affected • “not merely the routine of practice, nor rights determined by the lapse of time, or palpable legislative enactment." And the court stated that for these reasons, “we do not feel at liberty as we would wish, to throw ourselves back upon that decision, and thus evade further responsibility.” 3 Wis. 609.
The reasons advanced by the Wisconsin court speak for themselves. This was not, however, the last expression of the Wisconsin court upon the subject. In the subsequent case of Fisher v. Horicon Iron & Mfg. Co. 10 Wis. 351, the court expressly repudiated the ruling in Pratt v. Brown, on the ground that that case “did not call for-an adjudication” upon the question, and hence “none was had.” After making such statement, the court said: “We are free to confess that if the question as to the constitutionality of the mill-dam law were now for the first
The action of the United States Supreme Court in the Legal Tender Cases, is one which furnishes little or no support for the action of the majority members in the case at bar. The decision in the first Legal Tender Case held the so-called Legal Tender Act to be unconstitutional, not for any technical defect, but on the ground that it was beyond congressional power to enact such legislation. There was no chance to obviate the result of that decision by congressional action, and surely no one would ever assert that the court would have reversed the former decision if the effect thereof could have been obviated by an act of Congress. The first decision was by a divided court. There were in fact ■only four members of the court who concurred in the decision in its entirety. The fifth member (Judge Grier) stated “his judgment to be that the legal tender clause, properly construed, has no application to debts contracted prior to its enactment; but that upon the construction given to the act by the other judges he concurred in the opinion that the clause, so far as it makes United States notes a legal tender for such •debts, is not warranted by the Constitution.” Hepburn v. Griswold, 8 Wall. 628, 19 L. ed. 527. Judge Grier afterwards resigned, and was not a member of the court at the time the decision was read and filed. So when the decision was in fact promulgated, there were only four of the then members who concurred in it, and three who dissented,
Not only is the doctrine stare decisis generally recognized by the courts of this country, but it is recognized by the laws of this state. The Constitution requires this court to prepare and file its decisions. Const. § 101. The legislature has provided for the publication and distribution of such decisions, and, has ’ also, expressly declared that they shall be deemed an expression of the sovereign will, i. e. the law of the state. Comp. Laws 1913, § 4328. A distinguished legal writer (Fearne, Contingent Bemainders) in pointing out the worng which must result to society from a shifting judicial interpretation, says:
In discussing the same subject the present Chief Justice of the United States Supreme Court, said: “The conservation and orderly development of our institutions rests on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown at any time, and confusion and turmoil must ultimately result. In the discharge of its function of interpreting the Constitution, this court exercises an august power. It sits removed from the contentions of political parties and the animosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teachings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a theater of political strife, and its action will be without coherence or consistency. . . . The wisdom of our forefathers in adopting a written Constitution has often been impeached upon the theory that the interpretation of a written instrument did not afford as complete protection to liberty as would be enjoyed under a Constitution made up of the traditions of a free people. Writing, it has been said, does not insure greater stability than tradition does, while it destroys flexibility. The answer has always been that by the fore
It is probably true, as stated by one of the majority members, that the decision in State ex rel. Linde v. Hall, cannot be said to have established any rule of property. But there are rights more valuable than rights of property. In fact property rights are themselves bottomed upon constitutional provisions. The decision in State ex rel. Linde v. Hall, was filed in September, 1916. The legislative assembly convened the following January. The members of that assembly were familiar with the decision, and recognized its effect. Three different bills were introduced in the house and two in the senate, relating to the procedure in proposing constitutional Amendments by initiative petition, and the publication of such proposed amendments. See House Journal, pp. 640, 642, and Senate Journal, p. 228. There was no difference of opinion among the lawmakers as to the necessity of such legislation, — some of the measures even carried emergency provisions, — but the difference of opinion arose over the provisions of the proposed laws, i.e., as to the form of the procedure to be adopted. The senate majority adopted certain amendments tending to provide a stricter procedure than that proposed in the various bills as introduced (See Senate Journal 541, 613), and this was the rock upon which the proposed legislation stranded. The legislation failed simply because the legislators were unable to agree upon the terms of the proposed law. Not only was the matter considered by the legislative assembly at its regular session convened in January, 1917, but the
It is interesting to note that while the majority members reject a unanimous decision of this court, they invoke the doctrine of legislative construction in support of their determination of the first question raised by the .relator. The legislative practice relied upon was .by no means uniform.. Eor the first eight years after the adoption of
I have no intention, however, of resting this dissent solely upon the doctrine stare decisis. Eor while I am of the opinion that the decision in State ex rel. Linde v. Hall, should be deemed decisive of this case, I am even more strongly of the opinion that the conclusion reached by the majority in this case is erroneous, even though it be considered as an original proposition.
There had been considerable discussion of the initiative and referendum in this state for some years prior to the adoption of the constitutional amendments relating thereto. There were many divergent views upon the "subject. Some were opp'osed to the initiative and referendum as a whole. Others favored it as to- statutes, but opposed it as to constitutional amendments. Chief among the latter were those who feared that the initiative might be utilized by those opposed to prohibition to secure a resubmission of the prohibition provision in the state Constitution. And it is a well-known fact that certain temperance organizations in the state actively opposed the initiative as applied to constitutional amendments for this reason. This seems to have been the history of similar measures in other prohibition states. See The Initiative, Referendum, and Recall, American Academy of Political and Social Science, p. 165.
In view of the- different opinions with respect to the matter, it is not strange that the legislature in 1911 passed four different concurrent resolutions proposing constitutional amendments relating to the proposal of statutes, or constitutional amendments, or both, by initiative petition. The different amendments proposed themselves
' Senate Bill No. 84, introduced by Senator Plain (Sess. Laws 1911, chap. 88), embraced both constitutional amendments and statutes. This bill expressly provided: “The secretary of state and all other officers shall be guided by the general laws and this act in filing and submitting initiative and referendum petitions until legislation shall be especially enacted therefor. This amendment shall be self-executing, but laws may be enacted for the purpose of facilitating its operation.” House Bill No. 237, introduced by Representatives Doyle of Poster County, and Ployhar of Barnes County (Sess. Laws 1911, chap. 94), provided for the proposal of laws, resolutions, and constitutional amendments, and the recall of officers. This bill contained full and explicit provisions for putting the same into action, and contained this proviso: “This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation.” Under tfie provisions of both the Plain bill and the Dolye-Ployhar bill, initiative petitions ■proposing constitutional amendments required the signatures of only fifteen per cent of the legal voters in each county of at least one half of the counties of the state.
Senate Bill No. 5 (Sess. Laws 1911, chap. 93), introduced by Senator Bessesen of Wells county, provided for the initiative and referendum of statutes, and had no application to constitutional amendments. This bill expressly provided that the secretary of state and all other officers, in submitting initiated or referred measures to the people, “shall be guided by the general laws and the act' submitting this amendment until legislation shall be specially provided therefor.” It further provided: “This amendment shall be self-executing, but legislation may be enacted to facilitate its operation.”
The amendment which is involved in this controversy was introduced as Senate Bill No. 153 (Sess. Laws 1911, chap. 89), by Senator Gib-bens of Towner county. This bill related to initiation of constitutional amendments only, and had no reference to the initiation of statutes. It provided that “any amendment or amendments to this Constitution may also be proposed by the people by the filing with the secretary of state, at least six months previous to a general election, of an initiative
It will be noted therefore that the twelfth legislative assembly passed, and referred to the thirteenth legislative assembly, three different measures, relating in whole or in part to, and providing for the proposal of, •constitutional amendments by initiative petition. The Plain and the Doyle-Ployhar bills in express terms providing that the proposed amendments were to be self-executing, and permitting constitutional amendments to be initiated by petitions signed by fifteen per cent of the legal voters of one half of the counties of the state; and the Gibbens bill, which contained no provision, in express terms, declaring the proposed amendment to be self-executing; and which required initiative
These several measures were again introduced in the thirteenth legislative assembly (1913 session). The Plain bill was introduced by Senator Plain on January 29, 1913, as Senate Bill No. 153 (See Senate Journal, p. 210), and when placed on its third reading and final passage on March 3, 1913, was defeated by a vote of thirty-three ayes to twenty-five nays, two senators being absent and not voting. Senate Journal, p. 1041.
The Doyle-Ployhar bill was introduced in the house of representatives on January 22,1913, as House Bill No. 133, by Representative Ployhar of Barnes county and Blakemore of Cass county (House Journal, p. 317), and was passed by the house of representatives, on February 6, 1913 (House Journal, p. 537). It was made a special order in the senate for March 6, 1913, and passed by a vote of twenty-six ayes to twenty-three nays, one being absent and not voting. A motion to reconsider the vote, by which the bill was passed, and that the motion to reconsider be laid on the table, resulted in a tie vote, twenty-four ayes to twenty-four nays, two being absent and not voting, and the motion was defeated by the vote of Lieutenant Governor Kraabel, who voted against it. Senate Journal, p. 1347. A motion to reconsider the vote by which the bill was passed was thereupon adopted by a vote of twenty-five ayes to twenty-four nays, one being absent and not voting (Senate Journal, p. 1400), and the bill, being placed upon its third reading and final passage was defeated by a vote of twenty-four affirmative to twenty-five negative votes, one absent and not voting. Senate Journal, p. 1404.
The Bessesen bill was introduced in the senate on January 14, 1913, as Senate Bill No. 32, (Sess. Laws 1913, chap. 101, by Senator Overson of Williams county (Senate Journal, p. 51). It was passed by the senate on March 3, 1913 (Senate Journal, p. 1076). On March 7, 1913, (the last day of the legislative session), it, together with the Gibbens bill, was referred to a conference committee, and finally passed by both the house and the senate. Senate Journal, 1076, 1576, 1602, 1619; House Journal, 2005, 2066.
The Gibbens bill was introduced by Senator Gibbens as Senate Bill
'A self-executing constitutional provision is said to be “one which supplies the rule or means by which the right given may be enforced or protected or by which a duty may be performed.” 8 Cyc. 753. It is a provision which is complete in itself and needs no further legislation to put it into force. Davis v. Burke, 179 U. S. 399, 45 L. ed. 249, 21 Sup. Ct. Rep. 210. But a constitutional provision which merely indicates “a line of policy or principles, without supplying the means by which such policy or principles are to be carried into effect,” is not self-executing “and will remain inoperative until rendered effective by supplemental legislation.” 8 Cyc. 759.
The constitutional provision under consideration in the case at bar provides that “the proposed amendment shall be published as the legislature may provide for three months previous to the general election.” This language is prospective. “And constitutional provisions, like statutes, always operate prospectively, and not retrospectively, unless the words used or the objects to be accomplished clearly indicate that a retrospective operation is intended.” 8 Cyc. 745; Cooley, Const. Lim. 7th ed. 97. See also 6 R. C. L. 33; Shreveport v. Cole, 129 U. S. 36, 32 L. ed. 589, 9 Sup. Ct. Rep. 210. The legislature has enacted no legislation providing for publication of proposed constitutional amendments, nor has it enacted any legislation whatever, for the purpose of putting the constitutional provision involved in this case into effect.
In the opinion prepared by Mr. Justice Birdzell, it is said: “Where constitutional provisions are held to be self-executing, it is in response to the apparent intention of the framers and the people who adopted them “to put it beyond the power of the legislature, to render them nugatory by refusing to enact legislation to carry them into effect.”
Let us apply this reasoning to the case at bar, and see where it leads. The members of the legislature who considered the constitutional provision involved in this case, also, considered three other measures realting to the initiative and referendum. The other three meas-ues expressly provided that they should be self-executing. One of the three, — relating to initiative and referendum of statutes, — was passed simultaneously with the provision under consideration in this case. The latter measure, as already indicated, not only provided that the secretary of state and other officers should “be guided by the general laws and the act submitting the amendment until legislation shall be specifically provided therefor;” but further expressly declared the amendment to be self-executing. Hence, it is clearly apparent that the legislators of this state were well aware of the fact that by inserting a specific declaration to the effect that a constitutional provision is self-executing they would “put beyond the power of the legislature, to render it nugatory by refusing to enact legislation to carry it into effect.” It is also apparent that the framers of three of the measures “feared that unless some such provision were contained in the Constitution there was danger,” that some obstacle might be thrown in the way by legislative nonaction or judicial interference. The legislators were not groping in the dark. They were fully alive to the situation. And, being so, they saw fit to exclude from the provision under consideration a declaration to the effect that it was self-executing. They also refrained from providing that the general laws should be applicable to the submission of measures thereunder; but, on the contrary,
It seems to me that the language of the provision under consideration, when construed in light of the history of the enactment thereof, clearly shows that the amendment was not intended to be self-executing.
And the courts have uniformly held that language similar to that just quoted evidences an intention that the provision, in which it is contained, shall not be self-executing.
In State ex rel. Barker v. Duncan, 265 Mo. 26, 175 S. W. 940, Ann. Cas. 1916D, 1, the supreme court of Missouri was called upon to construe the following provision in the Missouri Constitution: “In any county which shall have adopted ‘township organization,’ the question of continuing the same ma/y be submitted to a vote of the electors of such county at a general election, m the manner that shall be provided by law; and if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force im relation to counties not having township organization shall immediately take effect and be in force in such county.”
The court said: “It is fairly plain that so much of this section as says that ‘in any county which shall have adopted “township organization” the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law/ is by no possible view, or by cmy recognized canon of construction, self-executing. It is equally clear, on the other hand, that so much of this section as provides that, ‘if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township organization shall immediately take effect and be in force in said county,’ is self-executing. This view is held upon the first proposition, viz., that the portion of this section first above quoted is riot self-executing, for reasons that are plain and conclusive. The clause first above quoted does not purport to be self-executing; on the contrary, upon its face and by its very words it specifically relegates to the legislature the duty of providing by law for the manner of submitting the question of discontinuance of town
The supreme courts of California, Ohio and Tennessee, (and, also, the Federal courts), have construed the following constitutional provision: “All courts shall be open and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered thereon without denial or delay. Suits may be brought against the state in such courts and in such manner, as may be provided by law.” They all ruled that the provision was not self-executing, so as to authorize suits against the state, but that legislation must first be enacted authorizing such suits to be brought. See People v. Miles, 56 Cal. 401; Melvin v. State, 121 Cal. 16, 53 Pac. 416; Galbes v. Girard, 46 Fed. 500; General Oil Co. v. Crain, 117 Tenn. 82, 121 Am. St. Rep. 967, 95 S. W. 824; Memphis & C. R. Co. v. Tennessee, 101 U. S. 337, 25 L. ed. 960; Raudabaugh v. State, 96 Ohio St. 513, 118 N. E. 102.
The supreme courts of Alabama, Arkansas, Kentucky, Washington and Wisconsin, have all ruled that a constitutional provision, that “the legislature shall direct by law in whát manner and in what courts suits may be brought against the state,” is not self-executing. Chicago, M.
The majority members invoke the rule that “as between opposing possible constructions one of which will render a given provision operative, and the other of which might tend to defeat its purpose, the former should be adopted. The rule is predicated in turn upon the fundamental rule that the purpose of all judicial construction is to ascertain and give effect to the intent of the lawmakers. If the language used is plain, the lawmakers must be presumed to have intended what they said, and in such case there is no room for construction. But if the language is doubtful, or ambiguous, it becomes the province of the court to ascertain and give effect to the intention of the lawmakers. And, of course, it must be assumed that the lawmakers had some object in view in enacting or proposing a law. Hence, if a situation arises where two constructions are possible, one of which makes the act absurd or meaningless, and another which makes it reasonable and enforceable, it will be presumed- that the latter expresses the intention of the lawmakers. This is merely common sense, and no one has denied the correctness of the rule, when properly invoked. But it manifestly has no application in the instant case. For no one has ever contended that the constitutional provision involved in this case is meaningless or inoperative as a constitutional provision. On the contrary, this court in State ex rel. Linde v. Hall, expressly recognized it to be a part of the fundamental law of the state, and as such operative as a basis for appropriate legislation. The rule invoked does not mean that the court
It is suggested that the constitutional amendment involved in this case should be read in connection with and in effect considered a part of the one relating to the initiative and referendum of statutes. Can anyone believe that the legislators who proposed the two amendments had any such intent ? It seems to me that the answer is obvious. It is true the initiative, referendum, and recall have frequently been embraced in one constitutional amendment. It is well to remmber that the primary purpose of such amendments is to reserve to the people certain governmental powers. The fact still remains that the enactment of a statute is one thing, and the amendment of the Constitution quite another. In this state the framers of the Constitution clearly indicated that they considered the two matters essentially different. So did the man who framed, and the legislators who proposed, the two amendments. Not only did they refrain from including both propositions in one amendment, but they clearly indicated that the procedure in the two matters should be different. Thus, they provided that statutes may be initiated upon a petition signed by ten per cent of the legal voters in a majority of the counties; but that no constitutional amendment can be initiated except upon a petition signed by at least twenty-five per cent of the legal voters in not less than one half of the counties in the state; they placed no restriction upon the time during which notice of the submission of an initiated statute must be published, but they expressly provided that notice of the submission of an initiative constitutional amendment must be published at least three months prior to the general election at which it is submitted to the electors.
But even though the procedural matters in the amendment relative to the initiative of statutes be deemed applicable to the initiation of constitutional amendments, the result is not changed. Nor the fact remains that the only portion of the machinery therein specifically pro
It is stated that constitutional provisions relating to the initiative and referendum have generally been held to be self-executing. In support of this statement reference is made to the decisions of the supreme courts of Arkansas, Michigan, and Oregon. An examination of the cases cited and the constitutional, provisions construed therein will disclose not only that the cases -are distinguishable from the instant case, but that the reasoning adopted by the courts therein tends to support the conclusions reached by this court in State ex rel. Linde v. Hall rather than the conclusions reached by the majority in the instant case. The constitutional provisions of Arkansas and Oregon were similar. They both contained the express declaration that the secretary of state and other officers, in submitting initiated or referred measures to the electors, “shall be guided by the general laws and the acts submitting this amendment until legislation shall be specially provided therefor.” Not only is this language absent from the provision involved in this case, but in place thereof it is stated that “the proposed amendment shall be published as the legislature may provide for three months previous to the general election.” It will also be noted that our legislature used the very language contained in the Arkansas and Oregon Constitutions in the provision relating to initiating statutes, — which latter provision was intended to be self-executing.
The section of the Michigan Constitution which was held to be self-executing is one of the most complete on the subject which I have found. It prescribed the procedure in detail. It even provided that “each signer thereto shall add to his signature, his place of residence, street, and number in cities having street numbers, and his election precinct.” It further prescribed the qualifications of those entitled to circulate petitions, and the form of the affidavit to be attached to the petitions. It is unnecessary to enter into any further discussion of the Arkansas, Michigan and Oregon decisions. What has been said demonstrates the radical difference between the constitutional provisions' construed in these decisions, and the provision involved in the case at bar.
“Intent of legislature clear.
“That the legislature intended, when it passed the two separate initiative and referendum acts — one applicable to statutes and the other applicable to the Constitution — that the legislature should provide machinery to govern an initiative movement, is clearly indicated by a comparison of the two measures.
“The initiative and referendum as applied to statutes carried the following provision.
“ ‘This amendment shall be self-executing, but legislation may be enacted to facilitate its operation.’
“No such provision is made in the amendment to the Constitution governing the initiative of future amendments to the Constitution.
“Up to the legislature.
“Not only does the constitutional initiative amendment fail to provide for the self-operative feature — but it expressly provides that the legislature shall provide the machinery to make it operative.
*529 “Such provision is made in the second article of § 202, of the Constitution, as amended, as follows:
“ ‘"When such petition had been properly filed the proposed amendment or amendments shall be published as the legislature may provide.’
“The 1915 legislature made no provision for such publication.
“Percentage a mere restriction.
“Again, the Constitution, as'amended, says:
“ ‘Any amendment or amendments to this Constitution may also be proposed by the people by the filing with the secretary of state, at least six months previous to the general election, of an initiative petition of at least twenty-five per cent of the.legal voters in each of not less than one half of the counties of the state.’
“The amendment does not give the secretary of state or anybody else, authority to submit to a vote, any measure that may be initiated on a twenty-five per cent vote.
“The Constitution simply fixes twenty-five per cent as the minimum petition that may be required by the legislature in any measure that it might have passed to govern an initiative constitutional amendment election.
“That the legislature did not intend to make the twenty-five per cent feature operative through the amendment only is illustrated by comparison with the provision for the referendum of statutes — a portion of the amendment relating to the statutes, and which is self-operative, as expressly provided, being as follows: ‘Any measure or any parts, items or section of any measure passed by the legislative assembly either by a petition signed by 10 per cent of the legal voters of the state from a majority of the counties. . . .’
“The express provision is made in this instance for the ten per cent feature.
“The constitutional initiative clause says ‘at least twenty-five per cent,’ but leaves it open for the legislature to say just what percentage of voters shall be required.”
(In the concluding part of the interview comparison was drawn between the constitutional amendment providing for initiation of constitutional amendments, and the one adopted by the same legislature
But while the majority members hold that the provision was self-executing, this holding is in effect repudiated by them. For they proceed to apply certain statutes which were in existence at the time the constitutional provision was adopted. Of course, if the provision was self-executing it would be possible to put it into operation without any legislation whatever. But the majority members in effect admit that the provision standing alone furnishes no method by which the policy therein declared may be carried into effect. The statutes which the majority members may furnish the proper machinery for putting the provision under consideration into operation are §§ 3188 and 979, Comp. Laws 1913. Section 3188, reads: “Whenever any amendment to the Constitution of this state is referred to the legislative assembly to be chosen at the next general election after the session in which such amendment is first proposed, the same shall be published for three months previous to the time of making such choice in one weekly paper in each county in which a weekly paper is published, once in the first month, once in the second month, and four times in the third month.”
Section 979, reads: “Whenever a proposed constitutional amendment or other question is to be submitted to the people of the state for popular vote the secretary of state shall, not less than thirty days before election, certify, the same to the auditor of each county in the state and the auditor of each county shall include the same in the publication provided for in § 975. Questions to be submitted to the people of the county shall be advertised as provided for nominees for office in such section.”
Section 975 referred to in § 979, requires that ten days before an election, notice thereof shall be given by the county auditor, by publishing in one or more newspápers in the county, or if there is no newspaper published, then by posting notices thereof at three public places in each precinct. All of these sections were enacted in 1891. They were enacted to furnish the necessary machinery for the submission of constitutional amendments proposed by the legislature. At the time
The assertion that certain portions of § 3188, Comp. Laws 1913, may be rejected as surplusage is so manifestly unsound that it answers itself. The fundamental differences between the two methods of proposing constitutional amendments cannot be reconciled by the elimination of words. And no number, or use, of words can conceal or alter the fact that the publication prescribed by § 3188 had reference only to a publication to be made interim the proposal of a constitutional amendment hy one legislative assembly and the election of the members of the legislative assembly to which the proposed amendment was referred. This was the situation which the legislative mind contemplated at the time of its enactment, and that situation has existed at all times since it became part of the laws of this state. If the portions of the statute making it applicable to this situation are rejected “as surplusage,” its very framework is removed. As was pointed out by this court in Wyldes v. Patterson, 31 N. D. 282, 323, 153 N. W. 630, the adoption of such method in construing laws would indeed lead to startling results. It is somewhat similar to the method utilized by the atheist who invoked the aid of the Bible in proving that there was no God. He quoted the clause, “There is no God,” from the 14th Psalm, when the complete sentence reads: “The fool hath said in his heart, there is no God.” Wyldes v. Patterson, 31 N. D. 323, 153 N. W. 630.
. Let us compare the conclusion reached by the majority members in this case with the conclusions reached by the different courts, which have construed the constitutional provisions to the effect that “suits may be brought against the state, in such courts and in such manner as may be provided by law.” Such provisions were doubtless the announcement of a constitutional policy, and evinced an intent that the state should be subject to suit. In all of the states, there were, of
And so in State ex rel. Barker v. Duncan, 265 Mo. 26, 175 S. W. 940, Ann. Cas. 1916D, 1, there were of course statutes in Missouri providing- for elections. And if the reasoning of the majority members in the instant case is sound, the Missouri court should have held such statutes applicable to an election to be held on the question of township organization.
It, also, seems to me that the reasoning of the majority members is directly in conflict with the reasoning adopted by this court in Cahill v. McDowell, 40 N. D. 625, 169 N. W. 499. That case involved a primary election for the location of a county seat. Under the statute nominating petitions are filed, and the names of the towns contending for the, location of the county seat are placed upon a ballot to be voted at the primary election and the two receiving the highest number of votes are placed upon the official ballot at the general election. The legislature failed to make any specific provision for the contest of such primary election. There were, however, statutes already in existence providing for the ■ contest of nominations of candidates for office at primary elections.- There were also 'statutes providing for contesting general elections for removal of county seats. But this court in a unanimous--decision (concurred in by all the majority members) held-those latter statutes inapplicable to a primary election held under the first mentioned statute. It seems to me that the reasoning in the case cited is directly contrary to the reasoning on which the majority members base their conclusion in the case at bar.
Here I close my opinion. Inasmuch as I believe that the relator is entitled to the relief sought upon the authority of State ex rel. Linde v. Hall, 35 N. D. 34, 159 N. W. 281. I express no opinion upon the question whether the failure to enter a proposed constitutional amend
This opinion has become more extended than I intended it to be. But I could hardly say less in view of the gravity of the questions involved. With all due regard to the opinions of the majority members, I regard their decision as a step backward. I regard it as an invasion by the judiciary of the legislative department of the government. It is needless to say that I fully agree with the majority members that the people have the right to alter and reform their government. No one who believes in the American principles of government has ever denied this. Let all admit what none dény, that the collected will of the people, expressed in the manner they have designated in the fundamental law, is supreme. But our government was, and is, founded upon a written Constitution, which contained and contains within itself a provision for its own amendment. Its provisions are declared to be “mandatory and prohibitory unless, by express words, they are declared to be otherwise.” N. D. Const. .§ 21. Ours is a government by law, and not by man. It is based upon principles of right, and not of might. Our Constitution is a compact among all the people. It is equally binding upon all, — the majority as well as the minority. No man is so high as to be above the Constitution, and no one so low as to be beneath its protection. The minority, nay every individual citizen, has a right to insist that its provisions shall not be altered except in the manner agreed upon in the Constitution itself. These principles have been recognized not only by our courts, but have been voiced by the men who “made and preserved us a nation.”
The following words of Washington and of Lincoln are as true to-day, . as when they were uttered: “The basis of our political systems is the right of the people to make and alter their Constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”