Section 25 of the North Dakota Constitution was enacted by the People. Through it the people speak as the final authority on questions of legislative power, subject only to the provisions of the Constitution of the United States. "This section shall be self executing and all of its provisions treated as mandatory." It provides for the enactment of legislation through the initiative process, with respect to which it says, "Each petition shall have printed thereon a ballot title, which shall fairly represent the subject matter of the measure, . . . ." It further provides that "All measures submitted to the electors shall be published by the state as follows: `The Secretary of State shall cause to be printed and mailed to each elector a publicity pamphlet containing a copy of each measure together with itsballot title, to be submitted at any election. . . .'".
The petition under consideration, in compliance with the provisions of Section 25, stated "As such petitioners, we hereby present and propose the following ballot title under which said enactment shall be placed, to-wit: AN ACT MAKING IT UNLAWFUL FOR THE STATE OF NORTH DAKOTA, ITS POLITICAL SUBDIVISIONS, COUNTIES, CITIES, VILLAGES AND THE STATE HIGHWAY DEPARTMENT, TO ESTABLISH AND MAINTAIN ANY DEVICES KNOWN AS `PARKING METERS', OR BY WHATEVER NAME DESIGNATED, REQUIRING THE DEPOSIT OF COINS OR TOKENS THEREIN FOR THE PRIVILEGE OF PARKING CARS OR OTHER VEHICLES UPON THE STREETS AND HIGHWAYS IN THE STATE OF NORTH DAKOTA, AND DECLARING VOID ANY EXISTING ORDINANCE OR RESOLUTION AUTHORIZING THE USE OF SUCH DEVICES."
Chapter 176, SLND 1947 provides, "Each measure initiated by or referred to the electors shall be numbered in the order received and shall be submitted to the electors by number and *Page 373 ballot title and shall be placed upon the ballot by the secretary of state." (Emphasis supplied in these quotations.)
The measure in question was placed on the ballot under the following heading.
"INITIATED MEASURE NO. 2 — PROHIBITING PARKING METERS IN POLITICAL SUBDIVISIONS." The ballot title proposed by the petitioners was omitted. The heading was followed by the full text of the proposed measure as set out in the petition. The printing of this heading is not a substantial compliance with the requirements for printing the ballot title, contained in Section 25 and Chapter 176, SLND 1497. It indicates the prohibition of parking meters only in political subdivisions, while the law also includes the State of North Dakota and the State Highway Department within the terms of its prohibition. It further indicates that parking meters generally, are prohibited while the law affects only coin or token operated meters. Moreover, no reference is made to the provision in the law declaring null and void all ordinances and resolutions authorizing the establishment and maintenance of parking meters. The heading under which the measure was submitted as its ballot title falls far short of substantial compliance in that it does not cover all of the important provisions of the measure which were embraced in the ballot title submitted by the petitioners. It would seem that if the ballot title contained in the petition may be displaced by the meager statement appearing at the top of the ballot in this case, the ballot title could be omitted altogether without affecting the validity of the measure after it had been approved at an election. Thus an important constitutional procedural requirement would be abrogated.
Under the provisions of Section 25 the Secretary of State is required to pass upon the sufficiency of the petition.
"All decisions of the Secretary of State in regard to any such petition shall be subject to review by the supreme court. But if the sufficiency of such petition is being reviewed at the *Page 374 time the ballot is prepared, the Secretary of State shall place the measure on the ballot and no subsequent decision shall invalidate such measure if it is at such election approved by a majority of the votes cast thereon."
From this I draw the conclusion that the framers of Section 25 and the people when they adopted it, had in mind the effect of an election and limited that effect to curing defects in the petition. If it had been intended that failure to follow, substantially, the constitutional mandates regarding the submission of a measure should not invalidate it after election, it would have been easy to so state.
The measure now under consideration is short and comparatively simple in text. The same law applies to all measures regardless of their length. The next case before this court may involve the submission of a long and complicated enactment. We are dealing here with provisions designed to inform and protect the electorate. Judicial construction cannot vary with the length of the measures submitted.
It has also been pointed out that before the election the measure in question was published in the publicity pamphlet. That publication, however, contains the same errors and the same constitutional defects that appeared on the ballot. A defective ballot cannot be cured by a defective publication in the publicity pamphlet.
Larkin v. Gronna, 69 N.D. 234, 285 N.W. 59, involved principles similar to those which I have discussed. For a further consideration of those principles and the authority supporting them I refer to my dissenting opinion in that case.
The measure in question was not submitted to the people in substantial compliance with the mandatory provisions of Section 25 of the North Dakota Constitution, and is, therefore, void. *Page 375