Larkin v. Gronna , 69 N.D. 234 ( 1939 )

Section 202 of the Constitution of North Dakota adopts the initiative as one of two methods of amending the Constitution. After providing for amendments by legislative proposal this section goes on to say, "Amendments to the Constitution of the state may also be proposed by initiative petition of the electors; such petition shall be signed by twenty thousand of the electors at large and shall be filed with the secretary of state at least one hundred twenty days prior to the election at which they are to be voted upon, and any amendment or amendments so proposed shall be submitted to the electors and shall become a part of the Constitution, if a majority of the votes cast thereon are affirmative. All provisions of the Constitution relating to the submission and adoption of measures by initiative petition and on referendum petition shall apply to the submission and adoption of amendments to the Constitution of the state." Thus it is specifically said that the provisions of the Constitution relative to the enactment of legislation by initiative apply when the amendment of the Constitution is sought through the medium of the initiative. The initiative and referendum provisions relating to legislation are found in § 25 wherein the people reserve the power to propose measures and to enact and reject them at the polls. "This section shall be self-executing and all of its provisions shall be treated as mandatory." Section 25 provides, in considerable detail, the method by which the power of initiative may be used. In the second paragraph of this section it is said that, "Every such petition shall contain the full text of the measure and shall be filed with the secretary of state not less than ninety days before the election at which it is to be voted upon." This provision applies with full force and verbatim to proposals to amend the Constitution except that § 202 requires the petition to be filed with the secretary of state at least one hundred twenty days prior to the election.

At the primary election in June, 1938, a purported amendment and re-enactment of § 82 of the Constitution of the state of North Dakota was submitted to the voters and received a majority of the votes cast thereon. This purported amendment was proposed by initiative petition and, among other things, provided, "The tax commissioner shall be elected on a no-party ballot and he shall be nominated and elected in the manner now provided for the nomination and election of the superintendent of public instruction." The portion of the proposal above quoted is entirely new. Nothing like it appeared theretofore in § 82. In fact, nothing like it has ever appeared before in the Constitution of this State. If this provision is effective it imbeds in the Constitution wholly by reference all of the statutory law which at the time of the adoption of the amendment provided for the nomination and election of the superintendent of public instruction as the manner of electing a tax commissioner. While this provision contains on its face but one sentence, it, in fact, embraces those provisions of statutory law to which it may be fairly said to refer. This statutory law does not appear upon the petition. Anyone who reads the petition does not find therein all of the proposed amendment. It can only be ascertained by examination of the statutes of the state. Sections of the statute are not even referred to. The deficiency must be supplied either from a general knowledge of the law on the part of signers and voters, or by a search for the letter of the law through the various provisions pertaining to the nomination and election of the superintendent of public instruction. The question of the sufficiency of a petition which incorporated by reference certain statutory provisions was passed upon in the case of Dyer v. Hall, 51 N.D. 391, 199 N.W. 754, wherein it was said, "The framers of the amendment to the Constitution, providing for the initiative and the referendum, were careful to require that every petition contain the full text of the constitutional amendment proposed. The reason for this requirement is obvious. The twenty-sixth article of the amendments (now § 25) requires the secretary of state to mail to every voter in the state a publicity pamphlet `containing a copy of each measure together with its ballot title, to be submitted at any election.' The average voter does not have conveniently at hand the text of the Constitution or the statutes of this state; if, therefore, he is to have an opportunity to know fully and intelligently what he is doing when he signs or declines to sign a petition, or votes on a proposed amendment, it is only if the full text of the proposed amendment to the Constitution be inserted in the petition, and embodied in the publicity pamphlet sent him, that he will be able to do so. Before he votes, if the proponents of the measure faithfully do their duty, he will have an opportunity to read a ballot title that fairly and briefly represents the measure proposed, or if he desire, he may read the full text of the amendment. If, however, provisions of the Constitution, or provisions of statutes, are incorporated in the proposed amendment, by reference only, the signers of petitions and voters have no opportunity to read or examine fairly the contents and appreciate the real import of the proposed amendment. . . . We see no reason why the secretary of state should accept as sufficient petitions that, upon their face, fail to comply with this mandatory provision of the Constitution. The notion that the fundamental law of the state can be weighted, in the manner here attempted, by incorporating therein by reference only a large number of statutes, enacted during a period of many years and scattered throughout several volumes of compiled statutes and session laws, is entirely novel in American jurisprudence." According to Dyer v. Hall, supra, the petition in the case before us fails to state the full text of the measure. See also Preckel v. Byrne, 62 N.D. 356,243 N.W. 823; Scott v. Secretary of State, 202 Mich. 629, 168 N.W. 709. The majority opinion disposes of this failure by holding that the defect can be taken advantage of only prior to the election and that after the people have approved the measure, the defect, if any, has become cured or at least can no longer be urged as fatal to the validity of the amendment. In so deciding the majority opinion leans heavily upon the following provision of § 25: "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." I am firmly convinced that this quotation will not sustain the burden which the majority opinion places upon it. Giving to it all the possible implications that may reasonably be said to emanate therefrom the most that can be said for the provision quoted is that after election a measure may not be attacked for defects in the petition. This provision clearly can go no further. It cannot cure defects in the manner of submitting the measure to a vote of the people when those defects amount to substantial violations of mandatory provisions of the Constitution.

An examination of the record in this case discloses that aside from the defects contained in the petition itself two major violations of § 25 occurred during the process of enactment. Both of these violations deal with the manner of submission of the measure in question. Submission consists of two major steps. First, publication and second, election. With regard to the first step, we find 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 its ballot title to be submitted at any election.'" The proper publication of measures is an important step in their enactment. It is the means prescribed by the Constitution of informing the voters in advance of the election as to the contents of the proposals which they will later find upon their ballots when they go to the polls. The publicity pamphlet is designated as the medium of such publication. In it must appear "a copy of each measure." That can only mean the entire measure, the full text of the measure. In this case the publicity pamphlet contained only a copy of the material that appeared in the defective petition which, as has been pointed out, did not set forth the full text of the measure. The publication in the publicity pamphlet did not embrace a copy of a measure which contained a full text, and the publication, therefore, was to that extent, defective. The voters were not given an oportunity to read in the publicity pamphlet all of the measure which they were asked to approve or reject.

The failure of the publicity pamphlet to carry the full text of the measure was not the only defect in publication. Section 25 contains the requirement that, "Each petition shall have printed thereon a ballot title which shall fairly represent the subject matter of the measure." The publicity pamphlet must contain not only a copy of the measure, but also its ballot title. The ballot title is of extreme importance; it is also required to be on the ballot. "Each measure initiated by or referred to the electors shall be submitted by its ballot title, which shall be placed upon the ballot by the secretary of state. . . ." The ballot title which was submitted falls far short of meeting the requirements of the Constitution. It reads as follows: "An Act Amending § 82 of the State Constitution, to Provide for the Election of a Tax Commissioner on a No-Party Ballot, for a Four-Year Term." The only amendment suggested by the ballot title is the election of a tax commissioner, but an examination of the text of the proposal discloses two other changes. The name of the office of secretary of state is changed to that of secretary by deleting the words "of state." A much more important change, also unmentioned and unimplied by the ballot title, is made by reducing the terms of office of the commissioners of railroads from six years to two years.

It is suggested that the defects in the ballot title were cured by the publication of the proposal in full in the pamphlet and on the ballot. Neither the law nor the Constitution requires such publication. It was entirely a voluntary act on the part of the secretary of state. The publication of the ballot title was made in large bold type. The publication of the text of the proposal was in small type. A ballot title "which shall fairly represent the subject matter of the measure" is a mandatory requirement of the Constitution. The fact that the secretary of state did something which he was not required to do by causing the entire measure to be printed in small type under the defective title will not cure the defect. He cannot be permitted to substitute that which is not required for something which is specifically required by the Constitution.

The importance of a proper publication of a proposed amendment to the Constitution is emphasized by the Supreme Court of Pennsylvania in these words: "The Constitution is the fundamental law of our commonwealth, and, in matters relating to alterations or changes in its provisions, the courts must exercise the most rigid care to preserve to the people the right assured to them by that instrument. No method of amendment can be tolerated which does not provide the electorate adequate opportunity to be fully advised of proposed changes." Com. ex rel. Atty. Gen. v. Beamish,309 Pa. 510, 164 A. 615. The test of the sufficiency of a ballot title is that such title should be sufficiently complete to convey an intelligent idea of the scope and importance of the proposal and should be free from any tendency to mislead which might result from either overstatement, false statement, or omission. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331; Newton v. Hall, 196 Ark. 929,120 S.W.2d 364.

Different rules apply in viewing the procedure and requirements of the amending processes before and after the election. When an attack is made upon a proposed amendment before election it is generally held that procedural requirements are mandatory and must be strictly followed. If an election has already been had the rule of strictness as to procedure is relaxed. Substance is more important than form, and the will of the people expressed at a proper time and in a proper manner is not to be lightly disregarded. However, this rule of construction should not be extended to uphold the validity of a purported amendment which is defective in substance and has passed through the formality of an election without being safeguarded by even a substantial compliance with the mandatory provisions for the enlightenment of the electorate. It is the duty of the courts to declare void any amendment the passage of which has been obtained in such a manner.

An election is not a cure-all for ailing amendments. In McAdams v. Henley, 169 Ark. 97, 273 S.W. 355, 41 A.L.R. 629 (see also note in 41 A.L.R. 640), the court held that provisions of the Constitution of Arkansas with reference to the method of adopting amendments are mandatory and must be complied with in order to effect a valid amendmuent, and that under a constitutional requirement that proposed amendments to the Constitution shall be entered on the journals an amendment adopted by the electors is invalid if it does not correspond to the journal entry. In Boyd v. Olcott, 102 Or. 327, 202 P. 431, the validity of the enactment of an amendment was upheld since there appeared to have been a substantial compliance with constitutional provisions. The court, in the opinion, however, says, "The Constitution prescribes the method by which it may be amended, and the procedure so prescribed is the measure of the power to amend. The provisions of the Constitution for its own amendment are mandatory and binding, not only upon the Legislative Assembly, but also upon all the people as well; and, consequently, a failure to observe the mandates of the Constitution is fatal to a proposed amendment, even though the electors have with practical unanimity voted for it." In State ex rel. Hall v. Cline, 118 Neb. 150, 224 N.W. 6, the Supreme Court of Nebraska had before it the question of the validity of a constitutional amendment that had been approved at an election. The Constitution of Nebraska provided that proposed amendments should be published once each week for four weeks in at least one newspaper in each county immediately preceding the election. This provision was not complied with although publication had been made in 422 newspapers in an attempt to comply wtih a statute that had erroneously been thought to be applicable. The court, in dealing with the question of the sufficiency of the publication to sustain a valid amendment, says:

"The question then is resolved into the inquiry whether the acts done and notice given can, by any reasonable construction or interpretation, be held to be a substantial compliance with the constitutional requirements. We are reminded in argument that it will not do to require a too rigid adherence to mere details of procedure, that the large vote cast on the proposition demonstrates the actuality of notice to the electors, and that the people should not be hindered in receiving the benefits of an amendment which they have approved by a substantial majority.

. . . . . . . . . . .

"The same authority urged upon us in this regard, the people, have already prescribed in their fundamental law how a change thereof may be accomplished. That mandate is of as high an order and as binding upon both the government and the governed as any other that can come from the same source. It is poor argument to say that, rather than rectify an oversight, we must violate existing provisions of our Constitution in order to engraft upon it a new provision which has not received the notice the people have prescribed as necessary to an adoption thereof."

I agree with the majority opinion in holding that a measure cannot be successfully attacked after election for defects in the petition by which the measure was initiated. I depart from the holding of the majority upon the proposition that the failure to substantially comply with the manner of submission to the people provided by the Constitution is cured by the election. Unless submission is had in substantial compliance with the provisions of the Constitution, opportunity is given to perpetrate fraud upon the electorate or to mislead the voters through error or design. In this case a proposal was submitted that did not "contain the full text of the measure" under a ballot title that failed to "fairly represent the subject matter of the measure." The purported amendment was not submitted to the people in substantial compliance with the mandatory provisions of the Constitution regarding the enactment of amendments. The submission was substantially and fatally defective. The amendment is void.