On June 30, 1926, the people by popular vote enacted an initiated measure imposing a tax upon the sale of motor vehicle fuels. It consisted of ten sections, nine of which set forth the law. The tenth section provided for the repeal of acts or parts of acts in conflict with the measure.
Section 25 of the North Dakota Constitution provides for the initiative and referendum. It contains the following, "No measures enacted or approved by a vote of the electors shall be repealed or amended by the legislature, except upon a yea and nay vote upon roll call of two thirds of all the members elected to each house."
The initiated measure provided for its administration by the state auditor. In 1941, the twenty-seventh legislative assembly, by chapter 195 of the Session Laws of that year, transferred to the state tax commissioner all the rights, powers and duties formerly possessed by the state auditor in connection with the administration of motor vehicle fuel taxes.
I agree with the majority of the court upon the following points involved in this controversy:
1. That prior to the enactment of chapter 195, N.D. Session Laws 1941, certain sections of the initiated measure had been amended by vote of two thirds of all the members elected to each house. The sections so amended are 2, 3, 4, 5 and 6.
2. That sections 1, 7, 8, 9 and 10 had not been amended.
3. That chapter 195, while not so reciting, is in fact an amendment of the initiated measure as amended by intervening legislative acts.
4. That chapter 195 sufficiently affects and modifies the operation of the unamended portions of the initiated measure so as to amount to an amendment or repeal of some of those portions and thus, could have only been validly enacted by a vote of two thirds of all the members elected to each house. *Page 167
5. That chapter 195 failed to receive the constitutional majorities necessary to amend an initiated measure and therefore failed of passage.
I am unable to agree with those portions of the majority opinion that lead to the conclusion that an initiated or referred measure having once been adopted by popular vote, ever after requires a two-thirds vote in each house to amend or repeal it regardless of the number of valid amendments enacted by the legislature. Once a popular measure always a popular measure, is a conclusion with which I cannot agree.
Prior to the adoption of § 25 of the Constitution the legislative power of the state was vested in the legislature. Section 25 vested that power in both the legislature and the people. Except where specifically provided by the Constitution, laws enacted by either the legislature or the people are of equal rank. They are all subject to amendment or repeal by the action of either the legislature or the people. The only restriction upon the amendment or repeal of a measure approved by the people is the requirement that the legislature act by a two-thirds vote of both houses.
The question that deeply concerns me is whether, after the legislature has amended a popular measure by a two-thirds vote, the section or sections so amended still retain their original quality so as to require a two-thirds vote for further amendment, or are to be treated thereafter as legislative enactments rather than popular measures. I am of the opinion that when the legislature, by a two-thirds vote in both houses, has "amended and re-enacted to read as follows" any section or sections of an initiated measure, those sections are thereafter to be considered legislative enactments subject to amendment or repeal as such.
Successive legislative assemblies are empowered to legislate by majority vote without respect to what preceding assemblies have done. It is a fundamental principle of American government that one legislature may not tie the hands of its successors. One legislative assembly may not write into the laws a statute which a succeeding assembly may not amend or repeal by a majority vote. The majority opinion would modify that principle by making an exception of legislative amendments to popular measures and thus permit one legislature by amendment to incorporate into a popular measure provisions of laws, germane *Page 168 thereto, which were never thought of by the framers of the measure or the people who enacted it thereby giving to these new provisions the same sanctity as the old and tying the hands of majorities in succeeding legislative assemblies. This modification is a two-edged sword that may sever some of the sinews of popular government while seeming to shield others.
"1. The provisions of § 25 of the Constitution, relating to initiated and referred legislation, are a part of article 2 of the Constitution, relating to the legislative department, and initiated and referred legislation is subject to all constitutional restrictions the same as laws passed by the legislative assembly." Syllabus. State ex rel. Gammons v. Shafer,63 N.D. 128, 246 N.W. 874.
Section 64 of our Constitution provides that, "No bill shall be revised or amended, nor the provisions thereof extended or incorporated in any other bill by reference to its title only, but so much thereof as is revised, amended or extended or so incorporated shall be re-enacted and published at length."
In considering the effect of an amendment to a statute in the light of a similar section of the California Constitution, the supreme court of that state said, "The Constitution (article 4, § 24) declares that `no law shall be revised or amended by reference to its title; but in such cases the act revised or section amended shall be re-enacted and published at length as revised or amended.' It was held in Billings v. Harvey, 6 Cal. 381, that under this provision of the constitution, `if a statute or section of a statute is re-enacted, it is totally inconsistent with the idea that the old statute or section still remains in force, or has vitality for any purpose whatever. The re-enactment creates anew the rule of action, and, even if there was not the slightest difference in the phraseology of the two, the latter alone can be referred to as the law, and the former stands, to all intents, as if absolutely and expressly repealed.' This rule of construction was afterwards reaffirmed by the court in Billings v. Hall, 7 Cal. 3; Morton v. Folger, 15 Cal. 284; Clarke v. Huber, 25 Cal. 594; Bensley v. Ellis, 39 Cal. 313; People v. Tisdale, 57 Cal. 104. When § 2619 was, in 1874, `amended to read as follows,' the section, as it had previously stood upon the statute book, ceased to have any statutory force, and was no *Page 169 longer a portion of the laws of the state." Huffman v. Hall,102 Cal. 26, 36 P. 417.
The principle thus enunciated by the supreme court of California is applicable to the amendment of an initiated measure by the legislature. After the legislature has "amended and re-enacted to read as follows" any section of a popular measure, that section is thereafter a legislative enactment that amends and supersedes the old law. "From the time of the passage of the new statute, the whole force of the enactment rests upon the latter statute" even though as indicated by the cases cited in the majority opinion the amendment keeps alive the legal rights and remedies that are carried over into the new enactment. People ex rel. Canajoharie Nat. Bank v. Montgomery County. 67 N.Y. 109, 23 Am Rep 94; People v. Lowell, 250 Mich. 349, 230 N.W. 202.
We are here dealing with procedure pertaining to legislative enactments and not with substantive rights that may be carried through without interruption from one enactment to another by means of amendments. I can find no better or more conclusive statement than that contained in § 237, Lewis's Sutherland, Statutory Construction, 2d ed. which says, "The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively according to the general rule. But all the provisions of theprior law amended which continue in force after the passage ofthe amendatory act derive their force thereafter not from theoriginal but the amendatory act, and as to the future the old actor section is repealed in toto." (Italics supplied.)
My reasoning and the foregoing authorities lead me to the definite conclusion that any section or sections of a popular measure that have been "amended and re-enacted to read as follows" by an affirmative vote of two thirds of all the members elected to each house of the legislative assembly is thereafter a legislative enactment and may be amended or repealed by a majority vote.
BURKE, J. I concur in the opinion prepared by Judge Morris. *Page 170