McCarney v. Meier

286 N.W.2d 780, 1979 N.D. LEXIS 332

• Court: North Dakota Supreme Court
• Decided: December 12, 1979
• Docket: Civ. 9679
• Status: Published

Opinions

PEDERSON, Justice.

This is an original proceeding under Article 105, Constitution of North Dakota, to review the decision of the secretary of state (Meier) that the petition to refer House Bill 1221, which was passed at the Forty-sixth Session of the Legislative Assembly, popularly called the “Cross Ranch Bill,” was insufficient and would not be placed on the ballot for a vote of the people. We reverse the decision and direct that the matter be placed on the ballot.

The bill appropriated moneys in the Vietnam bonus fund for the “acquisition of the cross ranch and other land for designation as the veterans memorial state park” (Ch. 39, S.L.1979). Shortly after its passage and approval, a sponsoring committee (McCar-ney) was formed to refer the bill to a vote of the people.

As required by Article 105 of the Constitution, the petition was first presented by McCarney to Meier for approval as to form. The significant part of the petition form for our purposes, which was approved by Meier, contained the following:

At the time McCarney filed the petitions in Meier’s office on July 8, 1979, they bore 13,270 signatures, 914 more than were required to refer.the measure. None of the signatures has been found to be invalid, but 1,150 were rejected because of incomplete addresses. The remaining signatures accepted by Meier were insufficient under Article 105 to allow the “Cross Ranch Bill” to be referred to the electors.

Meier returned the petitions to McCarney on July 23, 1979, “for correction or amendment” as provided in Section 6, of Section l,¹ of Article 105, allowing 20 days to obtain complete post-office addresses for signers from the larger cities in the state who had inserted only city and state in the column headed “P.O.ADDRESS” and gave no street address in the column headed “RESIDENCE.”

Meier instructed McCarney that each petition that required correction must be returned to the same person who circulated that petition so that the circulator could have each signer, whose address needed to be completed, write in his or her complete address. McCarney did not comply with Meier’s instructions but re-filed the petitions on August 8, 1979, after the committee had inserted house numbers and street addresses, by the use of directories, for the signers who had failed to do so.

When no further attempt was made to “correct” the petitions in the manner suggested by Meier, on August 24, 1979, McCarney was informed that the petitions were rejected and the referral would not be placed on the ballot. McCarney petitioned this court for review.

Scope of Review Under Article 105

Section 6 of Article 105, Constitution of North Dakota, provides in part:

“All decisions of the secretary of state in regard to any such petition shall be subject to review by the supreme court. If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it.”

Section 7 of Article 105 states in part that:

“All decisions of the secretary of state in the petition process are subject to review by the supreme court in the exercise of original jurisdiction.”

Meier submits that in reviewing the secretary of state’s determination this court is governed by the “abuse of discretion” standard enunciated in Hernett v. Meier, 173 N.W.2d 907 (N.D.1970). In Hernett, the issue was whether or not signatures on a referendum petition complied with a statute, § 16-01-11, NDCC. It appears that the proper standard of review was not raised as an issue.

Under the principle of separation of powers, courts do not substitute their judgment for that of an executive officer who has exercised a discretionary function. See Appeal of Johnson, 173 N.W.2d 475 (N.D.1970). That has no application, however, to ministerial acts.

In State v. Hanna, 31 N.D. 570, 154 N.W. 704 (1915), the issue raised was whether or not the secretary of state’s action in filing and canvassing referendum petitions pursuant to § 25 of the Constitution² was discretionary, and whether or not his decision was conclusive on this court. This court found that his decision was not conclusive and, in holding that the duties fixed by § 25 are ministerial, said:

“That a question of law may arise, as here, upon the sufficiency of the petition vests no discretion in said official in acting under it.” 154 N.W. at 705.

There is authority for the proposition that the placing of a proposal on the ballot by the secretary of state is a ministerial, not a quasi-judicial, act. State ex rel. Williams v. Brown, 52 Ohio St.2d 13, 6 Ohio Cas.3d 79, 368 N.E.2d 838 (1977). See also, 42 Am.Jur.2d, Initiative and Referendum, §47.

We are not bound by the secretary of state’s interpretation of the Constitution, and the “abuse of discretion” standard has no application here.

It has been suggested that, in effect, Meier’s determination is a proceeding against the petition and thus the “burden of proof” is upon him pursuant to the provision in Section 6 of Article 105, which states: “If proceedings are brought against any petition upon any ground, the burden of proof shall be upon the party attacking it.” We do not agree that there is a burden of proof upon anyone in this case where the principal question is entirely one of law, and to the extent that there are disputes as to the facts, they are not material to our determination.

Canons of Constitutional Construction

Principles of construction applicable to statutes are generally available to construction of the Constitution. The court must give effect and meaning to every provision and reconcile, if possible, apparently inconsistent provisions. State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977). It is the duty of the court to discover and give effect to the intention of the people without doing violence to. the words employed. State v. Amerada Petroleum Corp., 78 N.D. 247, 49 N.W.2d 14 (1951). All rules of construction are subservient to this duty to ascertain and give effect to the intent and purpose of the framers and the people who adopted the Constitution. Newman v. Hjelle, 133 N.W.2d 549 (N.D.1965). Expediency has no application nor does public clamor, majority desire, or apparent need. State v. Olson, 44 N.D. 614, 176 N.W. 528, 534 (1920).

Historical Background

Originally, neither § 25 nor § 202 reserved to the people any power to initiate or refer legislative measures or to initiate constitutional amendments. In 1914 amendments were made to both of these sections so that these powers were acquired by the people (Article 15, Nov. 3, 1914, S.L.1911, Ch. 93, S.L.1913, Ch. 101; Article 16, Nov. 3, 1914, S.L.1911, Ch. 89, S.L.1913, Ch. 98).³

The amendment of § 202 to provide a means for the people to initiate amendments to the Constitution was challenged in State v. Hall, 44 N.D. 459, 171 N.W. 213 (1919),⁴ although the court stated that its remarks applied equally to § 25 on initiative and referendum powers. This court prefaced its decision by calling attention to the provisions of § 2 of the North Dakota Constitution, which says:

“All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require.”

Justice Grace, writing for the majority, said:

“The words of section 2 have the deepest significance; the words have such a profound meaning, and are such a lucid revealment of the place where political power is lodged for the benefit of the people, as should make a vivid impression on the minds of all. Each generation of people inherit this great and far-reaching political power from the preceding generation. As an inheriting generation, it is part of their birthright to receive such power; to protect it with all their intelligence; to preserve it; to enjoy it, and hand it down to the future generation, to posterity, unimpaired. In this connection it would be well for all who, for a time, are invested with authority and commissioned by the will of the people to exercise for the people and for their benefit some of the inherent power of the people, to comprehend that all such persons, so briefly commissioned with such authority, are but the agents and instrumentalities selected by the people to perform certain duties for the people. In this sense, Governors of states, Legislatures, and courts, and each and every other person engaged in performing a public duty prescribed by the people, is, at all times, the agent only of the people, to exercise for the people such delegated political power as the people, in their sovereign capacity, may determine shall be exercised by such agents or any of them. All political power being in the people, they may delegate what powers they deem best; they may also repossess themselves, wholly or partially, of a delegated power by a consent of the majority of all the people, in whom is inherent all political power, such consent to be expressed in the manner provided by law.” 171 N.W. at 214-215.

In declaring the amendment of § 202 effective, this court looked to the object of the amendment, i. e., to acquire for the people a concurrent power with the legislature to initiate amendments to the Constitution. In holding that the provision should be construed to uphold this purpose, it said:

“The constitutional provision, therefore, should not be construed so as to defeat its evident purpose, but should be construed so as to make it operative and effective, and to overcome the difficulty which it was intended to obviate.” 171 N.W. at 218.

The history and purpose of the amendment was described in State v. Hall, supra, as follows:

“Again, in construing the Sixteenth Amendment, the contemporaneous history should be taken into consideration; the insistent demand of the people to be allowed the right to propose amendments to the Constitution, the history of the resolutions proposing the amendments in the legislative assembly, the fact that campaigns were waged partly on the issue of adopting the proposed amendment, are all matters which may receive consideration in the construction of a constitutional amendment.” 171 N.W. at 218.

One of the concurring justices, Robinson, wrote:

“But section 202 was framed for submission to the common people, who had asked for bread and did not expect to be given a stone. For years they had made a strenuous and determined fight for the initiative and referendum, and they did not look for their public servants to offer them for approval a thing in the form of a snare, a trap, or a delusion. .

“Hence it behooves the courts to give to section 202 a broad and liberal construction, so as to advance and secure the purposes and intentions of those who adopted the amendment.” 171 N.W. at 233.

The authors of 16 C.J.S. Constitutional Law, § 14, writing about initiative and referendum, omitting supporting footnotes, say:

“Initiative and referendum provisions should be liberally construed; and any doubt should be resolved in favor of the exercise of this right by the people. As a general rule such provisions in a constitution should be construed as a whole. The exercise by the people of the power thus reserved will not be interfered with except on a clear showing of a violation of the law, but the rule that such provisions will not be so construed that the real intention of a referendum petition may not be defeated by a mere technicality will not extend to permission of substantial violations of constitutional requirements.” [Emphasis in original.]

See also, 82 C.J.S. Statutes, § 117, and 42 Am.Jur.2d, Initiative and Referendum, § 5.

Conclusions

With this admonition in mind that constitutional provisions should be construed to effect their purpose, and in view of the history of the initiative and referendum which shows that these were provisions the people fought strongly for, Article 105 should be given a broad and liberal construction. As was stated by the Supreme Court of Oklahoma in In Re Initiative Petition No. 23, Etc., 35 Okl. 49, 127 P. 862, 866 (1912):

“The right of direct legislation in the people must be administered by the officers charged with that duty in such manner as to make it operative. If technical restrictive constructions are placed upon the laws governing the initiation and submission of these measures, the purpose and policy of the people in establishing the same will be entirely defeated, and instead of becoming an effective measure for relief from evils, under which they have heretofore suffered, there will be naught but an empty shell Those who circulate the petition will necessarily be drawn from the ranks of volunteers or those who, for a very small consideration, call attention to their fellow citizens to the measure proposed, and solicit their interest therein. Necessarily even with the best safeguards that can be thrown around the circulation of petitions, where such a large number of names are required, inaccuracies and technical departure from prescribed forms are certain to occur every time a petition is circulated. ... All of these things are proper to be noted and taken in consideration in the administration of this law. It can be made effective or defeated by the officers charged with its administration, and it is our duty to sustain it, rather than destroy, if it can be accomplished within the law.”

In the instant case, volunteers circulated the petitions to refer the Cross Ranch Bill, and obtained 13,270 signatures, of which 1,150 were rejected by the secretary of state as he deemed that these individuals had failed to correctly sign the petitions in that they did not give complete post-office addresses. At issue here is the construction of Section 3 of Article 105, which section provides as follows:

“The petition shall be circulated only by electors. They shall swear thereon that the electors who have signed the petition did so in their presence. Each elector signing a petition shall also write in the date of signing and his post-office address.” [Emphasis added.]

All provisions in Article 105 are expressly made mandatory (Section 1, Article 105).

This is not a case where a mandatory provision was ignored. The individuals whose signatures were rejected did attempt to comply with Section 3, and they did so in the manner that the petition and samples given suggested to follow, i. e., by placing their city and state in the column titled “P.O.ADDRESS CITY-STATE” (Sample —“Bowman, N.D.”), and by indicating township or county under the column titled “RESIDENCE,” also as suggested by the sample.

It is not alleged that the rejected signatures are not genuine. Rather, they were rejected because the secretary of state, after approving the form of the petition, construed the words “P.O. ADDRESS” to require house numbers and street addresses in addition to city and state in the cases of the larger cities in this state.

It is, of course, absolutely necessary that each individual who signs a petition be an “elector,” i. e., one who is qualified to vote on the law. This requirement has always been a part of the constitutional provision dealing with the initiative and referendum. Hernett v. Meier, supra.

The further requirements that each elector shall also write in the date of signing and his post-office address were added to the Constitution with the adoption of Article 105. They had previously been the subject of a statute, § 16-01-11, NDCC.

The purpose for adopting § 16-01-11, requiring a post-office address, was not to make the signature more valid, but to aid the secretary of state in contacting the signer to determine whether he or she was a qualified elector and did, in fact, sign the petition. Schumacher v. Byrne, 61 N.D. 220, 237 N.W. 741 (1931). In a 1970 case, Hernett v. Meier, supra, a dissent was written suggesting these provisions were not enough, and that reform was necessary to discourage fraud in the referral process. The 1971 Legislature apparently had this same thought in mind, as § 16-01-11 was amended and two new provisions, § 16-01-11.1 and § 16-01-11.2 were created (S.L.1971, Ch. 215). Section 16-01-11.1, in addition to providing the secretary of state with a method by which he could pass on the sufficiency of petitions, stated that if, in the course of determining the sufficiency of a petition, he should discover fraud, “he shall deliver the evidence thereof to the attorney general who shall prosecute the perpetrators.”

Adding the requirements of the date of signing and post-office address to the Constitution apparently then were not immediately in response to Hernett. Presumably they place a greater burden on the committee for petitioners and secretary of state, who act as agents for the people, to preserve the integrity of the process. However, this burden should not work to the disadvantage of the qualified electors who signed the petition and expected their signatures to be counted.

In the instant case, 13,270 people signed the petitions, evidencing a desire to have the bill referred. They attempted to comply with the constitutional provisions by adding their city and state to the designated column, in accordance with the sample provided.

The Constitution does not define what constitutes “post-office address.” It would not promote the purpose of the Constitution to exclude a signature because the signer failed to comply strictly with a technical requirement where the sample provided misled the signer to believe that city and state (i. e., “Bowman, N.D.”) was a sufficient designation of post-office address. We do not mean to imply that the secretary of state may never require a street address. Rather, under the circumstances of this case, substantial compliance with the constitutional mandate is sufficient. See State v. Gray, 67 N.D. 148, 271 N.W. 133 (1937); Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687 (1932). Cf., State v. Hall, 35 N.D. 34, 159 N.W. 281 (1916); State v. Hanna, 31 N.D. 570, 154 N.W. 704 (1915).

Although it undoubtedly would have been easier had complete addresses been given, Meier was able to contact the people whose signatures he rejected. In paragraph 21 of his affidavit to this court he states: “On or about August 8, 1979, I personally began contacting individuals whose names appeared on the petitions with, in my opinion, insufficient addresses, to determine whether they had been contacted to insert their full post office address on the petitions.” The problem could easily be rectified in the future by making sure that signers are instructed to give their house numbers and street addresses, if any, in addition to the city and state.

We are guided in our decision by the principle that the right of the people to be heard should be maintained. We will not defeat the real intent of the signers on the basis of a petition that was not artfully drawn and was misleading. We hold, under the circumstances of this case, that the designation of city and state was a sufficient compliance with Section 3 of Article 105. We reverse the decision of the secretary of state and remand for placing the question on the ballot.

In light of what we have said, we need not address the question of whether or not the corrections made by the committee for petitioners were proper. Likewise, we deem it inappropriate for this court to address the other purported irregularities raised by the attorney general. It has not been asserted that those irregularities entered into the secretary of state’s determination that the petitions were insufficient. It appears further that proceedings under the statute are available in the case of fraud.

A public question being involved, there will be no costs allowed.

PAULSON and SAND, JJ., concur.

1 . Article 105 is divided into four main sections with numerous subsections found under Section 1. However, these subsections are designated by the titles “Section 1, 2, 3, 4, etc." Thus, all sections referred to in this opinion are actually subsections of the main heading “Section 1.”

2 . Insofar as Article 105 relates to the reservation in the people of the power to refer measures enacted by the legislature, it supersedes Section 25 of the Constitution.

3 . One might be interested to note that in State v. Summers, 33 S.D. 40, 144 N.W. 730 (1913), the South Dakota court states that South Dakota was the first state in the Union to adopt the initiative and referendum.

4 . In State v. Hall, 35 N.D. 34, 159 N.W. 281 (1916), § 202 was held not to be self-executing and, therefore, ineffective. This decision was overturned in the above case. See State v. State Board of Canvassers, 44 N.D. 126, 172 N.W. 80, 96 (1919), concurring opinion of Justice Bronson.