State ex rel. Twichel v. Hall

Robinson, J.

(concurring). In this case I fully concur in the well-considered opinions by Justice Grace and Justice Birdzell. This matter presents a petition by a private citizen to restrain the secretary of state from publishing certain proposed constitutional amendments and submitting the same to the voters at the next general election.

The petition for the submission of the amendments was duly filed March 3, 1918. It is signed by a majority of all the voters. It was given to one newspaper in each county to be published six times as provided by law during three months prior to the election.

The proposed amendments were filed in the office of the secretary of *507state pursuant to subdivision 2 of § 202 of tbe Constitution. That section was adopted in 1914 by a vote of 43,000 to' 22,000. It provides that when there is filed with the secretary of state a certain petition for an amendment of the Constitution, it shall be published as the legislature may provide for three months next preceding the general election and shall be placed on the ballot to be voted for at the next general election.

The section consists of two paragraphs. The first relates to the submission of constitutional amendments by the legislative assembly; the second, to the submission of amendments on a petition. The objections are:

(1) That the amended § 202 is void because it was not entered on the journal of the house in accordance with the original §' 202.

(2) That § 202 as amended consists of two subjects and two amendments which should have been submitted to a separate vote.

(3) That § 202 is not self-executing because it does not provide the manner of advertising amendments.

(4) The additional reasons stated in the Capitol Removal Case, 35 N. D. 34-78, 159 N. W. 281.

In the senate journal for 1911, the amendment is everywhere entered as, “Senate Bill No. 153. A Concurrent Resolution Amending the Constitution of the State of North Dakota Providing for Future Amendments Thereof.” In the house journal for 1911, the resolution is everywhere entered in the same identical manner, and the resolution is entered at large in the Session Laws of 1911 as chapter 89. In 1913, the journals show similar entries and so it appears the concurrent resolution was adopted by two successive legislative assemblies without the changing of even a punctuation mark. And its place in the session laws gave it a publicity and permanence far greater than any entry that might have been made in the journals.

Now as the law neither does nor requires idle acts, it is manifest that the entries in the journals and in the session laws was entirely sufficient.

1. It is not true that § 202 contains two subjects or two amendments. Its subject is the future amendment of the Constitution. It provides that an amendment may be submitted either in accordance *508with a concurrent resolution of two successive legislative assemblies, or a petition signed by at least twenty-five per cent of the voters in each of not less than half the counties of the state. Manifestly it does not contain two amendments.

2. In regard to- the advertisement of proposed amendments the words of § 202 are that amendments shall be published as the legislature may provide. That is in manner provided by law. As the people well knew all the amendments to the Constitution were advertised as provided by law and there was no reason for one method of advertising amendments submitted by the legislative assembly and a different method of advertising amendments submitted by petition. In voting for § 202 the people acted as a legislative body and it must be conceded that they never thought of voting for a deceptive or delusive measure that could have no force or effect until some future legislature should see fit to provide for a special system of advertising. And we must presume the legislature did not intend to submit to the people any tricky or delusive measure. However, if some lawmakers had such a nefarious design it should have no effect.

The judges are bound to give force to the manifest intention of the people — the legislative body that adopted the amendment. When the people act as lawmakers their action is governed by the accepted maxims of legislation. Like reasons doth make like laws. The Taw neither does nor requires idle acts. The law respects form less than substance. The interpretation which gives effect is to be preferred to that which makes void. In the construction of a statute where any uncertainty exists, the question is: What was the intention of the lawmakers ? In the language of Justice Field, instances without number exist where the meaning of words of a statute has been enlarged or restricted to carry out the intention of the lawmakers. Thus, in the Oregon Donation Statute, the term “a single man” was held to include an unmarried woman. The purpose of a Constitution is to give formal and authentic expression to the will of the people. Hence, Constitutions are to be construed as the people construed them in their adoption.

It is true that in the Capitol Removal Case, 35 N. D. 34, 159 N. W. 281, the court held against that part of § 202 which relates to the submission of amendments on petition. It was held to be a dead letter *509until such time as a legislative body should see fit to breathe into its nostrils the breath of life — to prescribe and fix the percentage of voters, the time of filing a petition, the manner of advertising it and the form of its enacting clause. But § 202 was framed for submission to the common people who had asked for bread and did not expect to be given a stone. For years they had made a strenuous and determined fight for the initiative and referendum, and they did not look for their public servants to offer them for approval a thing in the form of a snare, a trap, or a delusion. They had never read or heard of a constitutional amendment having an enacting clause, and they knew no reason for such a nicety. They knew that all the amendments had been advertised as provided by law, and, of course, they never thought that there should be a special law for the advertisement of an amendment submitted by petition. They knew that § 202 provided that a petition for an amendment must contain the signatures of at least twenty-five per cent of the legal voters, and, of course, it never occurred to them that a legislature should have any right or authority to change the percentage.

Hence, it behooves the courts to give to § 202 a broad and liberal construction so as to advance and secure the purposes and intentions of those who adopted the amendment.

Finally, on the initiative and referendum question, the people have fought a good fight; they have kept the faith; they have spoken with coherence and emphasis; their intention cannot be mistaken; hence, •they have, and may exercise, the right to control their own affairs and to make their own laws and constitutions.

Petition denied and dismissed.