State Ex Rel. Sanstead v. Freed

251 N.W.2d 898
CourtNorth Dakota Supreme Court
DecidedFebruary 21, 1977
DocketCiv. 9308
StatusPublished
Cited by29 cases

This text of 251 N.W.2d 898 (State Ex Rel. Sanstead v. Freed) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D. 1977).

Opinions

PAULSON, Judge.

The instant proceeding is a Petition for Original Prerogative Writ under § 86 of the North Dakota Constitution, seeking an order from this Court prohibiting the North Dakota Senate of the 45th Legislative Assembly from conducting its affairs and proceedings under Senate Rules 26 and 55 as the same presently exist and requiring the North Dakota Senate to amend Senate Rules 26 and 55 “consistent with the decision of this Court”. This Court issued an Order for Hearing on January 12, 1977, in which we requested that the parties address the question of this Court’s jurisdiction as well as the merits of the petition. The matter was heard on January 28, 1977.

The Petitioner, Lieutenant Governor Wayne G. Sanstead, instituted the instant proceeding in response to action taken by [901]*901the North Dakota Senate on December 9, 1976, on the third day of the Senate’s organizational and orientation session wherein Senate Rules 26 and 55 were amended.

Before amendment, Senate Rule 26 read:

“26. VOTE BY PRESIDENT
“The President shall vote only in case of a tie (See Rule 55).” [Senate and House Rules and Committees of the 44th Legislative Assembly of N.D., p. 13-S.R. (1975).]

Senate Rule 26 was amended to read:

“26. VOTE BY PRESIDENT
“The President shall vote only in case of a tie with respect to a procedural question. The President shall not vote on final disposition of any measure (See Rule 55).” [Senate and House Rules and Committees of the 45th Legislative Assembly of N.D., p. 14-S.R. (1977).]

Before amendment, Senate Rule 55 read:

“55. FINAL PASSAGE
“No bill shall become a law except by a vote of the majority of the members-elect of each House, nor unless on its final passage, the vote be taken by ayes and nays and the names of those voting be entered in the journal; provided, however, that no measure enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except by a two-thirds vote upon roll call of all members elected to each House. Ratification of amendments to the Constitution of the United States shall be by concurrent resolution approved by a majority, upon roll call vote, of the members elected to each House.” [Senate and House Rules and Committees, 44th Legislative Assembly of N.D., p. 27-S.R. (1975).]

Senate Rule 55 was amended to read:

“55. FINAL PASSAGE
“No bill shall become a law except by a vote of the majority of the senators-elect and of the members-elect of the House of Representatives, nor unless on its final passage, the vote taken by ayes and nays and the names of those voting be entered in the journal; provided, however, that no measure enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except by a two-thirds vote upon roll call of all members elected to each House. Ratification of amendments to the Constitution of the United States shall be by concurrent resolution approved by a majority, upon roll call vote, of the members elected to each House.” [Senate and House Rules and Committees, 45th Legislative Assembly of N.D., p. 29-S.R. (1977).]

Lieutenant Governor Sanstead contends that the amendments to the Rules of the North Dakota Senate of the 45th Legislative Assembly violate and contravene § 77 of the North Dakota Constitution, which provides, in pertinent part:

“Section 77. The powers and duties of the lieutenant governor shall be to serve as president of the Senate, but he shall have no vote unless they be equally divided. . . .”

In answering for the Senate, State Senator Howard A. Freed, President Pro Tem-pore of the North Dakota Senate, and State Senator David E. Nething, Majority Floor Leader of the North Dakota Senate, contend that Senate Rules 26 and 55 of the 45th Legislative Assembly, as amended, are not only constitutional, but are mandated by § 65 of the North Dakota Constitution, which provides:

“Section 65. No bill shall become a law except by a vote of a majority of all the members-elect in each house, nor unless, on its final passage, the vote be taken by yeas and nays, and the names of those voting be entered on the journal.”

I. JURISDICTION

Lieutenant Governor Sanstead asks that this Court exercise its original jurisdiction under § 86 of the North Dakota Constitution and issue an Original Prerogative Writ. Only the apparent conflict between Senate Rules 26 and 55, as amended, and § 77 of the North Dakota Constitution is alleged-— [902]*902since the amendment of Senate Rules 26 and 55 there had been no tie vote in the North Dakota Senate on any measure where the Lieutenant Governor had attempted to cast a tie-breaking vote; nor had there been such a tie vote when, in compliance with the said amended Rules, the Lieutenant Governor had abstained from voting as of the time of oral arguments before this Court.

This Court has long held that proceedings before this Court must involve an actual controversy of a justiciable character, between parties having adverse interests, and that we may not decide abstract legal questions or render purely advisory opinions. Section 94, N.D.Const.; State ex rel. Olsness v. McCarthy, 53 N.D. 609, 207 N.W. 436, 437 (1926); Langer v. State, 69 N.D. 129, 284 N.W. 238, 251 (1939); and State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355, 358 (1945). In State ex rel. Olsness v. McCarthy, supra 207 N.W. at 437, this Court said:

“The question is merely an abstract one, and arises solely because there is a disagreement between two officers as to what rule of law shall apply when an actual transaction does arise. As we view the case, this court is asked to deliver an advisory opinion. This we may not do. The courts of this state are authorized only to determine questions of law as they arise in actual controversies, and may not properly decide abstract legal questions or render purely advisory opinions.”

In Langer, supra 284 N.W. at 250, this Court, quoting Judge Cardozo in Self-Insurers’ Association et a 1. v. State Industrial Commission (In re Workmen’s Comp. Fund), 224 N.Y. 13, 16, 119 N.E. 1027, 1028 (1918), stated:

“ ‘The function of the courts is to determine controversies between litigants. [Citation of authorities.] They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function. * * * In the United States no such duty attaches to the judicial office in the absence of express provision of the Constitution. * * * In this state the Legislature is without power to charge the courts with the performance of nonjudicial duties.’ ”

As was pointed out during the North Dakota Constitutional Debates of 1889, at which Convention a proposed “advisory opinion” clause for our Constitution was considered and rejected:

. .we will have in this State an officer designated as the Attorney General, whose peculiar business it will be to advise the State officers and the Legislature when called upon. . . .

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Bluebook (online)
251 N.W.2d 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sanstead-v-freed-nd-1977.