State Ex Rel. Morris v. Sherman

245 N.W. 877, 63 N.D. 9, 1932 N.D. LEXIS 133

• Court: North Dakota Supreme Court
• Decided: December 13, 1932
• Docket: File No. 6126.
• Status: Published

Opinions

Pee CuetaM.

This is a proceeding in mandamus to compel the defendant, as auditor, to submit for publication the delinquent tax list for 1932 in accordance with § 2189 of the 1925 Supplement to the Compiled Laws of 1913. After a hearing in district court an alternative writ of mandamus previously issued was quashed and the plaintiff appeals to this court. The sole question involved in the proceeding and on the appeal is whether or not § 2189 of the 1925 Supplement to the Compiled Laws of 1913, regulating the publication of notice of delinquent tax sale, has been superseded for the year 1932 by an initiated measure which was voted upon at the general election November 8, 1932. The measure thus voted upon prescribes a method for the publication of notice of the delinquent real estate tax sale different from that prescribed by § 2189, and it contains an express repeal of § 2189 and of all other acts and parts of acts in so far as in conflict. The last section of the initiated measure reads as follows: “This act shall Take effect and be in force from and after the 8th day of November A. D. 1932 and shall apply to all delinquent tax sales for the year A. D. 1932 and subsequent years.” The question is whether or not this section can be given effect as worded in view of § 25 of the Constitution, which provides, among other things, “And such law shall go into effect on tbe 30th. day after the election, unless otherwise specified in the measure.”

The appellant contends that, in view of other expressions in § 25, the qualifying clause “unless otherwise specified in the measure” is only to be applied to effectuate a desire .to postpone the talcing effect of a measure beyond the 30th day and may not in any case shorten the period' within which it may take effect to less than thirty days after the ('lection. The respondent, on the other hand, contends that the act takes effect as therein stated.

The section of the Constitution in question governs both the initiative and referendum and covers the procedure with respect thereto quite fully. That it was intended to be so complete as to be operative without the aid of additional legislation, is made apparent by the statement in the concluding paragraph that the section shall be self-executing and all its provisions be treated as mandatory. It covers approximately a page and a half in tins printed code, and for the purpose of understanding the contentions on this appeal only such portions of the section need be quoted as bear upon the question of interpretation presented. After providing for submission of measures to the electors and for a vote upon the same at a designated statewide election, or any special election called by the governor, it is stated:

“. . . The result of the vote upon any measure shall be canvassed and declared by the board of canvassers.

“Any measure, except an emergency measure submitted to the electors of the state, shall become a law when approved by a majority of the votes cast thereon. And such law shall go into effect on the 30th day after the election, unless otherwise specified in the measure.”

(It is elsewhere provided that an emergency measure is not suspended by a referendum petition.)

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“In (If) conflicting measures initated by or referred to the electors shall be approved by a majority of the votes cast thereon, the one receiving the highest number of affirmative votes shall become the law.

“The word 'measure’ as used herein shall include any law or amendment thereto, resolution, legislative proposal or enactment of any char-actei*.”

The appellant contends that the provision requiring the result of the vote to be canvassed and declared recognizes tbe necessity for tbe completion of a canvass as a legislative step before tbe enactment can be said to bave been completed and tbat when tbis requirement is read in light of tbe declaration tbat “such law shall go into effect on tbe 30th day after tbe election, unless otherwise specified in tbe measure,” tbe reason for postponing tbe going into effect of tbe law for 30 days becomes apparent and is to enable all tbe mandatory steps in connection with tbe election to be taken. In light of tbis reason, it is argued, the qualification “unless otherwise specified in tbe measure” means tbat tbe law shall go into effect on tbe 30th day unless some date be specified beyond tbe 30th day, tbe period within tbat limit being one normally required for tbe canvass and declaration of the result. And to give it a construction which would enable legislation to take effect within such thirty-day period would be to defeat tbe manifest intention of tbis provision of tbe Constitution.

In support of tbis construction, modern legislative practice is invoked as showing tbe prevalence of fixed dates for tbe taking effect of legislative enactments to the end tbat normally a period may elapse between tbe vote of approval of legislation and tbe time of its taking-effect within which tbe public or a class specially affected may be apprised of tbe terms of an enactment and be given an opportunity to conform to any new requirement. From tbis is excepted, of course, emergency legislation by tbe legislature which generally is permitted to take effect from approval.

As against these contentions tbe respondent argues tbat 'the qualifying clause “unless otherwise specified in tbe measure” permits tbe fixing of any date for a law to take effect following tbe closing of tbe ■polls; tbat no period need elapse within which tbe direction to canvass and declare tbe result may be carried out; and tbat whether or not a. measure has been approved at tbe polls in any case where it is declared to be effective from tbe election date is a question of fact of which tbe court may require proof or of which it may take judicial notice. It is said tbe mere fact tbat in a given case there may be difficulty in determining judicially what tbe result of a state-wide election may bave been, and consequent uncertainty as to tbe law, does not argue strongly ■against tbe legal possibility of putting an initiated measuré in effect from tbe date of election, because situations frequently arise wheré persons are held to tbe terms óf a law with.' which they have had little or no opportunity to become familiar.

In resolving the question before us, we must not be unmindful that we are construing the fundamental law of the state. It is the source to which we must look for the governing rules with respect to the matters upon which it speaks. Every expression relating to such matters must bo assumed to have been used deliberately. We must look to the entire section to determine the purpose manifested by the people in adopting it and to its various provisions in order to give the utmost effect to the means prescribed for making that purpose effective. We must not assume that any prescribed procedure is merely formal or of no substantial moment, especially if it may operate in harmony with the dominant purpose and conduce to its ordered enjoyment. Here, the -dominant purpose manifested throughout the section is that of securing and safeguarding the right of the electors to legislate. We must avoid a construction contrary to this dominant purpose, but we must give effect, if possible, to every provision designed to facilitate its orderly operation. Wo must place to one side the thought that in tho particular case there may be no doubt of the result of the election in advance of the canvass of votes; for whatever rule the Constitution lays down with respect to the time when a measure submitted to the electors may take effect is applicable of course, whether the measure carries by one vote or by one hundred thousand. If it prescribes a rule with respect to the former situation, it must, of course, be followed with respect to the latter.

The contentions of the respondent are to the effect that the Constitution lays down no rale governing the time when measures may go into effect, except one that is applicable where no time is fixed in the measure. Under these contentions, therefore, the court may not only be called upon to determine whether or not a given measure has been carried before the result can be ascertained from a canvass, but it may bo required to determine the actual number of votes cast for conflicting provisions; for the Constitution declares that where conflicting provisions are approved the one receiving the highest number of affirmative votes shall become the law. While it is proper to consider the extent to which such a construction would detract from the meaning and effect of other express provisions, it is also appropriate to con- sicler the difficulties attendant thereon. It is reasonable to assume that in adopting the constitutional provisions in question it was the intention to furnish a guide which would be certain and definite with regard to the important matter of when a law should go into effect, rather that one which might involve the whole matter in inextricable doubt for a period of time.

Obviously, if a vote were so close as to give rise to a well founded doubt as to whether a measure had passed or had been defeated, or as to which of two conflicting measures had received the greater number of affirmative votes, the court could not take judicial notice of such a fact while shrouded-in doubt, because it would not be a fact generally known. Such facts could not normally be known until the prescribed procedure for determining them had been had. Since the court, then, could not take judicial notice, the only alternative remaining would be to determine such facts by proof and this, obviously, might involve difficulties which would be all but insuperable. Under the respondent’s contentions, therefore, the courts may be required (as we are asked to do here) to determine facts in advance of the canvass and declaration which are expressly required by the Constitution. Tet both the courts and the public might be subsequently bound by an official determination of the canvassing board to the contrary. Since the Constitution requires that the vote be canvassed and declared, it must be held to mean that the force ordinarily attaching to a canvass and declaration of the result is to be attached with regard to a submitted measure.

The determination of the result of an election is a function that ■ordinarily devolves upon administrative or ministerial officers and is not, under our system of government, normally conferred upon the •courts. “Elections belong to the political branch of the government, and are beyond the control of the judicial power,” in the absence of special legal authorization. 20 C. J. 209. It is in recognition of this division of power that provision has generally been made for canvassing boards to declare the results of elections. Such has been true during the entire history of the territory of Dakota and the state of North Dakota. A canvass is in itself ordinarily a part of the election, es-j)ecially where the result is to be certified or declared.

Thus, in People ex rel. Conliss v. North, 72 N. Y. 124, where a city charter provided that the city clerk should deliver statements and certificates to the common council at the meeting “which shall be on the Tuesday nest after the annual election in each year, who shall upon such statements and certificates declare and determine what persons have been elected to the respective offices voted for at such election,” the court held (page 128 of 72 N. Y.) “the declaration and certification of the common council is indispensable to the election and qualification of ward as well as city officers. . . . (page 129 of 72 N. Y.) The legislature can provide for the manner in which the result of an election shall be determined and declared, and their enactment is binding.” The argument was advanced that as to ward officers the declaration of the result was unnecessary because power was given to the inspectors of the several wards to malee statements determining and certifying the number of votes cast for each person and that, therefore, the declaration by the council was but a repetition of the prior determination of the inspectors. The court said that the power given to the inspectors “is not to declare who is duly elected, but simply to certify the number of votes cast for each candidate, while the power to determine, declare and certify which are duly electod.is given solely to the common council.

' “We cannot concur in the view that these provisions are only for the purpose of limiting the time within which the persons elected must take the oath of office. An examination of the whole section shows, we think, that its intention was to provide for the manner in which the election of the candidate should be consummated and officially declared; and that until these acts are done, his election is not complete, and ho is not qualified to serve.”

Similarly, in Dallas v. Dallas Consol. Street R. Co. 105 Tex. 337, 148 S. W. 292, where after an election was held for the purpose of voting upon an ordinance initiated by petition it was sought to interfere with the prescribed processes for determining the result, the court held .(page 341) :

“Elections belong to the political branch of the government, and the general rule is that they are beyond the control of the judicial power. The authority resides in the court to determine their validity, ” and in cases of invalidity to protect property rights which may be wrongfully impaired if their result is suffered to become effective and is sought to be enforced; but a proper deference for their respective powers that is imposed upon the several departments of the government, should constrain the courts to caution and certainty when their authority is invoked against the determination of the popular will.”

In answering the question as to whether or not “the canvassing of the returns and declaring the result of the election involve a political question of which a court of equity will not take cognizance,” the court said (page 341 of 105 Tex., 148 S. W. 292, 294) :

“As elections are essentially the exercise of political power, it cannot be doubted that all action properly related thereto and necessary to their completion is from the same source, and is but the expression of the same power. The canvassing of the returns of an election is necessary to the determination of the result; it is an integral part of the election itself, without which the election is a vain proceeding, and as such inheres as a right sanctioned by the political power, as absolute as the right of the electorate to vote or for the election to be held. "When it is declared that because of their relation to the political power of the government, elections arc beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from .judicial interference ; and the canvassing of the returns of an election must therefore be held as within the rule and justly entitled to its protection.” See also State ex rel. Minchan v. Thompson, 24 N. D. 273, 283, 139 N. W. 960; People ex rel. Ryan v. Nordheim, 99 Ill. 553; Re Dennett, 32 Me. 508, 54 Am. Dec. 602; McCrary, Elections, 4th cd. §§ 319, 398 and 399; 2 Spelling, Extr. Relief, §§ 1551 and 1559.

It is incongruous to suppose that the people, in adopting this constitutional provision, intended to bind themselves by a court decision upon so important a matter as the existence or non-existence of an effective law, which decision would rest upon data which are necessarily insufficient until properly compiled and certified, pending a final determination of such fact or facts by a board especially constituted for the purpose. It is equally incongruous to suppose that they were not mindful of these difficulties and that they had deliberately chosen to -adopt a rule whereby they would bind themselves temporarily by an interlocutory determination of an unmentioned tribunal upon a matter which they have said should be determined and declared finally by á ■designated body. Surely, ■ tbe Constitution, to wbieb we must look for definite rules governing legislative procedure, has not thus cast in doubt the very existence of a law. Surely, it does not mean that the public is bound today by a court decision that a law exists and discharged of obligation tomorrow by a decision of a designated body upon •the same question.

Such incongruities are avoided by attaching the ordinary meaning to the mandatory language that the result upon any measure shall be ■convassed and declared by the board of canvassers and reading the same in connection with the following paragraph, which prescribes a time for a law taking effect that will ordinarily allow ample time for such ■canvass.

That such was the manifest intention is not in the least disproved by the suggestion that under existing election laws a longer period than thirty days might elapse, between the election date and the completion ■of the canvass; for, if the present laws are deficient in this respect, it is the clear duty of the legislature to make provision for an earlier canvass under the clause authorizing legislation to facilitate the operation of the initiative and referendum. Here, by express provision, ■a canvass is to be had. This canvass must be by “the board of canvassers” and not by the court. The result is to be “declared” by the ■same board and not by the court. We cannot give effect to these provisions by substituting the finding of an unmentioned tribunal, or by attempting to determine the result in a different way from that expressly provided. To give full effect to this provision ‘of the Constitution and to preserve the separation of the powers of government heretofore •obtaining and still evidenced by the language of this section, requires that pending the canvass and declaration no steps be taken in court which will, for the purpose of the proceeding, substitute the finding ■of the court for that of the designated tribunal. If this law, then, or any similar law, were to be put in effect prior to the thirtieth day, it would bo as a result of the court’s determination of a question which the Constitution says shall be determined by another body into whose hands such questions have been appropriately committed.

To some extent counsel for the respondent rely upon the rule of the English common law that an act of Parliament was deemed in effect from the first day of the session at which it was enacted. Start- ihg with this common law rule, it is argued that it is permissible for the legislature or for the people, in the exercise of legislative power, to provide when an enactment shall take effect, except in so far as the Constitution otherwise provides, and that any limitation upon the right should be clearly expressed. The common law rule had its origin in a legislative practice which has had little or no sanction in this country. The sessions of Parliament were treated as a continuous day, its rolls were made up after its adjournment and it had not been the custom to name any date except the date when Parliament assembled. There was, therefore, no day available to the courts from which to fix a different date as the effective date of a statute. See Turnipseed v. Jones, 101 Ala. 593, 14 So. 377; Lapeyre v. United States, 17 Wall. 191, 21 L. ed. 606. By statute in England in 1793, 33 Geo. III. chap. 13, the rule of the English common law in this respect was changed by reason of the “gross and manifest injustice of the rule.”

In People ex rel. Campbell v. Clark, 1 Cal. 406, it is said that the rule of the common law has never been permitted by the courts of the United States to operate to the prejudice of the rights of citizens or the public. We are of the opinion that the rule of the English common law has so little force under the constitutional legislative processes in this country as to have no force in considering the meaning of the constitutional provision in question.

Counsel, while conceding the dearth of authorities in point, place principal reliance xxpon Bradley v. Union Bridge & Constr. Co. (C. C.) 185 Fed. 544, and State ex rel. Elsas v. Missouri Workmen’s Comp. Commission, 318 Mo. 1004, 2 S. W. (2d) 796, as supporting their contentions, at least in principle. In the Bradley case the court had before it an employer’s liability act adopted by the people of Oregon on November 8, 1910, through the initiative process. The plaintiff had been injured in an accident which occurred on November 9, 1910, and the question was whether the law became operative on the date of its adoption or not until the vote had been officially canvassed and the proclamation of the governor issued stating the result and declaring the law to be in force and effect, the latter procedure being provided in a law which had been enacted for carrying into effect the initiative and referendum. The Oregon Constitution (art. 4, § 1) provided as follows: “Any measure referred to tbe people shall take effect and become tbe law when it is approved by a majority of tbe votes cast thereon, and not otherwise.” It will be noticed that the Constitution did not provide for a canvass of the votes or a declaration of the result. Neither did it recognize the necessity for any period of time elapsing between the adoption of a measure and its going into effect.

The same is true of the Missouri case, where an identical constitutional provision was construed. It will be noticed, as indicated above, that this provision makes no distinction between the taking effect of a measure and its becoming the law. It says that it “shall take effect- and become the law when it is approved by a majority of the votes cast thereon,” and then, as if to make sure that no other date should be prescribed for either the taking effect or the completion of the enactment, it says “and not otherwise.” It is difficult to conceive of a more conclusive expression than this. Furthermore, these cases came before the courts at a time subsequent to the completion of the canvass. So, the courts were not compelled to determine the result of the election in advance of a canvass as' we are asked to do here.

Our Constitution, it must be remembered, states that a measure becomes a law when approved by a majority of the votes cast, but it provides that the same law shall not go into effect until the 30 th day after the election, unless otherwise specified in the measure, thus recognizing the necessity for a period to elapse between the vote and the effective date of an enactment. We cannot find in our Constitution any provision indicating that an initiated measure may be so drawn as to take effect before the period has elapsed for the exercise of the constitutional processes for determining the result of the election. These processes are equally important to every measure, regardless of the date- when it may be desirable to make it effective. The only provision that can with reason be thought to authorize an earlier effective date is the qualifying expression “unless otherwise specified in the measure.” For the reasons indicated above, which we regard as conclusive, this expression cannot be given the effect contended for without detracting from the force of the ordinary and obvious meaning attaching to other portions of the section. ■ It is our duty to give effect to every provision of the Constitution. In doing so -we must here resort to an elementary rule of construction, applicable to constitutions and statutes alike, and construe tbe various provisions as being consistent with, each other. This requires that the sentence in question be read as prescribing the time when initiated measures take effect, viz., on the 30th day after the election, but that this rule shall not be arbitrary nor operate to prevent an act taking effect at another date specified in the measure, allowing only for the elapsing of the normal fixed time for canvassing the votes and declaring the result.

Since the measure in question will not be in effect until the thirtieth day after the election, § 2189 of the 1925 Supplement to the Compiled Laws of 1913 is not as yet repealed. It governs the publication of the notice of the delinquent tax sale, and a peremptory writ should have issued directing the delivery of the list for publication.

ChRistiaNSON, Oh. J., and Buree and Nuessle, JJ., concur.