I concur fully in the foregoing opinion prepared by the Chief Justice. However, the question that is presented in this case with respect to the ballot title is of such nature that I deem it proper and desirable to express some individual views with respect thereto.
It is "an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifested." 16 CJS p 120. In this state this rule was embodied in the constitution as originally adopted, ND Const, Sec. 21; and the constitutional provision relating to the initiative and referendum specifically provides that "this section shall be self executing and all of its provisions shall be treated as mandatory." ND Const, Sec. 25.
As shown in the principal opinion, in this case there was not a strict compliance with the provisions of Sec. 25 of the Constitution with respect to the ballot title as printed upon the election ballot. In the preparation of the ballot there was a departure from the direction or command of the constitution in stating the ballot title of the initiated measure and the *Page 368 question is presented whether such departure operated to nullify the election; or whether the irregularities in the ballot may no longer be asserted after the measure was submitted to and approved by the electors at the election. Legal writers and courts have recognized that the question thus presented is one of much "difficulty and embarrassment." Note 10 LRA NS at p 149. One of the leading authorities on constitutional law in this country (Judge Cooley) said, "The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of the constitution." It is apparent that the question as to the ballot title is a delicate and difficult one.
The constitution says that all the provisions of the section providing for the initiative and referendum shall be treated as mandatory. ND Const, Sec. 25. This constitutional mandate must, of course, be observed. The judges have taken an oath to support the constitution. Manifestly, they have no higher duty than to fulfill their oaths of office and carry out the commands of the constitution.
True, the provisions of Sec. 25 of the Constitution with respect to the ballot must be treated as mandatory. But to whom is the mandate given with respect to the ballot, and how shall a proposal for an initiated measure be stated thereon? To whom does Section 25 of the Constitution give the command with respect to the preparation and form of the ballot that shall be made available to the voters at an election where an initiated measure is being submitted for approval or rejection? The command is not to the voter who "has nothing to do with making up the ballot but is required to use it in order to exercise his right to vote." Kulp v. Railey, 99 Tex 310, 89 S.W. 957. The command relating to the preparation and form of the ballot is obviously given to the officer whose duty it is to place the measure upon the ballot. The provisions are mandatory and binding upon the officer charged with such duty "and for whose guidance and direction they are needed." Blackmer v. Hildreth et al. 181 Mass. 29, 63 N.E. 14.
In Blackmer v. Hildreth et al. (Mass) supra, the Supreme Judicial Court of Massachusetts had occasion to consider the effect of *Page 369 errors and omissions in the official ballot resulting from failure to comply with certain statutory provisions relating to the preparation of the ballot. The court said that such laws "are binding upon the officers for whose guidance and direction they are needed."
"But with the preparation of the ballot the influence of these provisions ends. If there be irregularities like those in this case they do not accompany the ballot and taint it in the hands of the voter. This view of the statute gives due weight and scope to the provisions in question, and preserves the sanctity of the right of suffrage and its free and honest exercise. To hold otherwise would be to lose sight of the purpose for which these provisions were made, namely, to provide the method and time for the preparation of the ballot, and would subject our elections to intolerable and perplexing technicalities in no way material to the substantial merits of the controversy or to the freedom and result of the action of the voters. Its natural tendency would be to thwart rather than to secure a true expression of the popular will."
In considering a similar question the Supreme Court of Montana said:
"There is wisdom in that construction of election laws which holds rigidly to the doctrine that in our country, where the will of the people is supreme, when clearly expressed it cannot be defeated by a claim that an official neglected to properly make up the ballot published and voted." State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 P. 1.
Errors and omissions in the official ballot which do not prevent a free and intelligent casting of the vote, and which could not have wrought a change in the result of the election do not invalidate the election. 28 Am Jur, Initiative, Referendum, and Recall, p 162, § 17; 18 Am Jur, Elections, p 298, § 280, p 300, § 183; Note: — 12 A E Ann Cas, p 722.
It is well settled that a different rule applies in measuring the effect of noncompliance with the provisions of law relating to an election where it is sought to set aside the result of an election from that which applies where the question of *Page 370 noncompliance is raised in a proceeding to enforce compliance before the election is held. 9 RCL p 1173; 30 CJ § 223; pp 181-182; Jackson v. Nims, 316 Mich. 694, 26 N.W.2d 569; State ex rel. Laird v. Hall, 49 N.D. 11, 186 N.W. 284. Ruling Case Law (9 RCL 1173) says:
"It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and from the current of authority the following may be stated as the approved rule: All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void." 9 RCL p 1173.
The section of the constitution (Sec. 25) relating to the initiative, referendum, and recall seems to evidence a clear intention that these well settled principles shall apply to an election at which an initiative measure is submitted and is approved by a majority of the votes cast thereon. The section provides: "The Secretary of State shall pass upon each petition, and if he finds it insufficient he shall notify the `Committee for the Petitioners' and allow twenty days for correction or amendment. 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 time the ballot is prepared, the Secretary of State shall place the measure on the ballot and no subsequent decision shall invalidate such a measure if it is at such election approved by a majority of the votes cast thereon."
According to the clear language of the provision just quoted, defects in a petition for the initiation of a measure, which would be fatal if the same had been raised by timely objection before the election may no longer be raised after the measure has been *Page 371 approved at the election. Thus, if an initiative petition is filed which has not been signed by the number of qualified electors which the constitution requires and if timely objection is made to such measure and if the decision of the Secretary of State in regard to such petition has been challenged and brought before the Supreme Court for review and the proceeding for review is pending at the time the ballot is prepared, the Secretary is required to place the measure on the ballot; and even though the court decides, subsequent to the election, that the petition is not sufficient and does not have upon it the required number of qualified signers the measure is not invalidated by such decision if the measure has been approved by a majority of the votes cast thereon at the election. State ex rel. Laird v. Hall, supra.
I am unable to see how the irregularity in the ballot involved in this case prevented a free and intelligent casting of vote upon the proposition submitted or how such irregularity could possibly have affected the result of the election. As the proposition was printed on the ballot, I think it fairly represented the subject matter of the measure to the voters, thus there was a substantial compliance with the constitutional requirement that there must appear upon the ballot a ballot title which shall fairly represent the subject matter of the measure.
The reported decisions of this court show that a number of controversies have arisen in proceedings for the initiation and referendum of measures. This court determined each of these controversies by applying the provisions of the constitution and then existing laws.
The court had no power then, and has no power now, to prescribe rules which might tend to obviate errors in the future and thus "facilitate the operation" of the constitutional provision relating to the initiative and referendum. The court is given no such power. The framers of Section 25 of the Constitution recognized, however, that it might become necessary or at least desirable to prescribe such rules; for, although they provided that "this section shall be self executing," and that "no laws shall be enacted to hamper, restrict or impair the exercise *Page 372 of the rights reserved to the people," they further provided that "laws may be enacted to facilitate its operation."