State ex rel. Kirkelie v. Kopriva

194 N.W. 704, 49 N.D. 1040, 1923 N.D. LEXIS 49

• Court: North Dakota Supreme Court
• Decided: July 11, 1923
• Status: Published

Opinion

BiRDzell, J.

This is an appeal from a judgment of dismissal in a certiorari proceeding which was brought to determine the validity of certain action of the rodistricting board of Burke county. The facts are as follows: On September 27, 1922, there was filed in the office of the county auditor of Burke county a petition as follows:

“To the County Judge, County Auditor and Clerk of the District Court in and for Burke County, North Dakota :

“The undersigned representing more than twenty-five per cent of the legal voters of the county of Burke, as determined by the votes cast at the last preceding general election for congressman, and acting under authority of Section 3262 of the 1913 Compiled Laws of North Dakota, hereby petition you as a board to change the boundaries of commissioners districts of the county of Burke so that the same shall be more reasonably equal in population.”

This petition was signed by 795 names. Thereafter, on October 3, 1922, the county redistricting board met and adopted a resolution as follows:

“Whereas, a petition presented before this board representing more than 25 per cent of the legal voters of the county of Burke, as determined by the votes cast at the last preceding general election for congressman, and acting under authority of § 3262 of the 1913 Compiled Laws of North Dakota, and

“Whereas, said board is petitioned to change the boundaries of commissioners districts of the county of Burke so that the same shall be more reasonably equal in population, and

“Whereas, such petition was signed by 795 legal voters of said districts, which number is in excess of the 25 per cent of the total votes cast for congressman in said districts in the last general election, said total votes being 2,758;

“Therefore, be it resolved, that in compliance with said petition, said board redistrict said Burke county commissioners districts so that Bich-land township which is included in township 163, range 90, shall henceforth be included in the second commissioners district and removed from said first commissioners district, and that Diinond and Vanvillo townships be removed from the second commissioners district and included in the first commissioner’s district, that as a result of said redistricting the first commissioners district, which had 1,282 votes in the general election in 1920 would be decreased to 1,165 votes. The second commissioners district which had 970 votes in the general election in 1920, would be increased to 1,087 votes and that the third commissioners district which had 1,131 votes in the general election of 1920 would remain unchanged.”

Motion seconded by C. B. Stitt, clerk of court and carried, all members of the board voting aye.

C. J. Kopriva, County Auditor.

J. L. Binke, County Judge.

O. B. Stitt, Clerk of Court.

The statute under which the proceedings were had is §§ 3262 and 3263, Compiled Laws of 1913 :

Sec. 3262. “The county judge, auditor and clerk of the district court of each county shall constitute a redistricting board with power to redistrict the commissioner districts in any county whenever 25 per cent of the legal voters of the county, as shall be determined by the votes cast at the last preceding general election for congressmen, shall petition said board to change the boundaries of the commissioner districts and file said petition with the county auditor. "Within twenty days after the filing of said petition it shall be the duty of the county auditor to call a meeting of the redistricting board to consider such petition, and if it shall appear that the commissioner districts of such county are not reasonably equal in population or extent of territory they shall proceed at once to redistrict such county into commissioner districts.”

See. 3263. “In redistricting any county it shall be the duty of the redistricting' board to make the districts as regular and compact in form as practicable, and as equal in population as possible, as shall be determined by the vote cast at the last preceding general election, but no new district shall be so formed that any two of the then acting commissioners shall reside in the same district, and no county shall be redistricted oftener than once in five years.”

Upon this appeal it is contended that the proceedings of the redistricting board are irregular and insufficient for the following reasons:

(1) That the petition is insufficient in that (a) it is indefinite and does not describe the new districts sought to be formed; (b) that there is not the required number of signers.

(2) That the hoard did not “consider” the petition as required by statute.

(3) That the board was without jurisdiction because it appeared that the districts, as then composed, were reasonably equal in population and extent of territory and were as regular and compact as practicable.

(4) That the action taken did not constitute a redistricting as required by § 3262.

These objections will be considered in the order stated. We are of the opinion that the statute does not require, a petition for definite changes. It rather contemplates an exercise of discretion by the board when its jurisdiction is properly invoked. Favorable action will be taken when it appears to tbe board that tbe commissioner districts are not as reasonably equal in population or extent of territory as they can be made. In exercising its discretion tbe statute seems to contemplate that tbe board is not to be controlled or restricted by definite proposals, but that action shall be taken to tbe end that tbe districts be as regular and compact in form as practicable and as equal in population as possible.

Tbe contention that there are not sufficient signers is based upon the provision in tbe statute requiring tbe number to be determined by the votes cast at tbe last preceding’ general election for congressmen. If tbe number be reckoned by the vote cast for representative in Congress, it is sufficient, but, if reckoned by the vote cast for United States Senator, it is insufficient. It is contended that, there being no such office as congressman and tbe term being equally applicable to a United States Senator and to a Representative in tbe House of Representatives, tbe statutory requirement is not met unless tbe petition contain names of voters equal to 25 per cent of tbe highest number of votes cast for an office tbe incumbent of which is in fact a member of Congress. The conclusive answer to this contention is that tbe statute prescribing this measure for determining tbe sufficiency of a petition was passed in 1901 (See chap. 54, Session Laws of 1901). At that time tbe voters did not vote upon tbe election of a United States Senator. This is conclusive as to tbe legislative intention manifested in tbe use of tbe word “congressmen.”

We think tbe objection that tbe board did not “consider” tbe petition within tbe meaning of tbe statute is wholly without merit in view of tbe recitals in tbe resolution. They reflect a consideration of tbe comparative vote in tbe respective districts, and tbe action taken tends apparently to equalize existing disparities. This likewise answers the third objection.

To tbe objection that tbe action taken constituted merely annexation rather than redistricting, it need only be said that, in our opinion, rc-districting, under § 3262, may properly be accomplished in this way if, in tbe judgment of the redistricting board, such is tbe practicable and feasible method of bringing about the result contemplated by the statute. The extent and character of changes to effect the statutory result are matters that clearly lie within the discretion of the board and do not go to its jurisdiction primarily.

A further argument is advanced to the effect that members of the board had signed as petitioners and by so doing disqualified themselves to sit in judgment on the petition. This question was not presented in the court below and consequently we are not required to consider it upon appeal.

■ It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.

BroNsoN, Ch. J., and OiiristiaNSON, Nuessle, and Joi-msoN, JJ., concur.