Schumacher v. Byrne

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On June 2, 1931 the petitioners delivered to the secretary of state a large number of instruments united to form a general petition as follows:

"REFERENDUM PETITION A MEASURE FOR A REFERENDUM OF SENATE BILL NO. 100. BE IT ENACTED BY THE PEOPLE OF THE STATE OF NORTH DAKOTA: That Senate Bill No. 100, ``For an Act to Amend and re-enact Sections 2, 3, and 5 of Chapter 166, Session Laws of North Dakota for the year 1929, and providing for a tax of four cents per gallon upon motor vehicle fuels, and further providing for the distribution of the revenue derived from said tax,' and passed by the 22nd Legislative Assembly at its regular session in 1931, be and the same is hereby repealed and disapproved.

Yes [ ]

No [ ]

We, the undersigned, consisting of over 7000 of the qualified electors at large, of the State of North Dakota, hereby propose that the above measure ``For a referendum of Senate Bill No. 100,' be submitted to the qualified electors of the state, for their approval or rejection, and we hereby request the Secretary of State of North Dakota to submit the above measure to the voters of the state at the next presidential primary election to be held on the Third Tuesday in March, 1932.

The ballot title of the measure shall be ``Referendum of Senate Bill No, 100, providing for a tax of four cents per gallon upon motor vehicle fuels and for the distribution of the revenue derived from said tax.' And we name H.C. Schumacher, Fargo, N. Dak., Chairman; H.R. Wood, Fargo, N. Dak., Allen McManus, Grand Forks, N. Dak., Bert Morrison, Robinson, N. Dak., and J.A. Felver, Fargo, N. Dak. who shall constitute the committee for Petitioners and who shall represent and act for petitioners." The petition was signed by approximately nine thousand electors of the state and tendered within the time prescribed by the provisions of § 25 of the state Constitution as amended. The secretary of state received the petition, made an examination of the same and, on June 18, 1931, in accordance with the requirements of said § 25 of the Constitution which says:

"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,"

notified the chairman of the committee as follows:

"Department of State, Bismarck, North Dakota, June 18, 1931. Committee for Petitioners, Referendum S.B. 100, Fargo, North Dakota. Attention: Mr. H.C. Schumacher, Chairman. Dear Sir:

You are hereby notified that the petition for a referendum of S.B. 100, passed by the Twenty-second Legislative Assembly, relating to 4-cent motor vehicle fuel tax and distribution of revenue derived therefrom filed with this office on June 2nd — does not meet the requirements of Article 26, Amendments to N.D. Constitution and Chap. 135, S.L. 1925, and is found insufficient for submission to the voters at the next presidential primary to be held on the third Tuesday in March 1932.

A careful check of the various separate copies making up this petition shows same to have been signed by 9277 petitioners. In 2975 cases, however, it appears very clearly that the signer himself did not add the date of signing, his residence and post office address and that this information was entered in the handwriting of some person other than the signer. Deducting this amount of 2975 from 9277, the total number of signatures, leaves 6302 satisfactory and acceptable signatures, or 698 less than 7000, the number required by Article 26, Amendments to our Constitution. In this connection we wish to state for your information that in arriving at the number of defective signatures (2975) proper credit has been given for 964 instances in which the signer himself did originally enter ditto marks in place of date and residence, according to your own personal statement of a week ago. But for this the number of defective signatures would have been 3939, making a total of acceptable signatures 5338 or 1662 below the required amount.

Although somewhat contradictory and conflicting in meaning no objection is made to the wording of the petition itself as this, in our opinion, is sufficiently expressive of the intention of the petitioners to effect a referendum of S.B. 100 passed by the Twenty-second Legislative Assembly of our state.

Very truly yours, Robert Byrne, Secretary of State."

The petitioners immediately applied to this court for a review of this decision of the secretary of state and for an order reversing the decision and requiring the secretary to file the petition in accordance with the provisions of the Constitution of this state and to place the same upon the ballot as required by law.

Upon this Walter R. Reed, John C. Hart, and Mrs. Walter C. Taylor applied to this court for leave to intervene, claiming to be electors and taxpayers of the state and beneficially interested in the result of these proceedings. This application was accompanied by a proposed "answer to petition for review and cross-petition for review" wherein these taxpayers allege not only that the secretary of state was justified in rejecting the petition on the grounds set forth in his notice to the "committee for the petitioners" but also allege that the "purported referendum petition does not contain or have annexed thereto the signatures of seven thousand electors of the state;" that the purported referendum petition is not a referendum petition but is in form and substance "an initiative petition for the enactment by the people of the state of North Dakota of a measure for the repeal of said Senate Bill No. 100," and is void because it lacks the signatures of ten thousand electors; that said petition "does not contain and set forth a ballot title fairly representing the subject-matter of the measure sought to be referred," in this that it fails to disclose that "the measure sought to be referred is in fact an amendment of §§ 2, 3 and 5 of chapter 166 of the Session Laws of the state of North Dakota for the year 1929;" that it fails to disclose and set forth "the nature and significance of the material and important changes and amendments thereto accomplished by the said Senate Bill No. 100;" and fails to disclose and set forth whether the proposed tax of four cents per gallon is a mere increase of the tax of three cents already provided for or whether it is an additional and independent tax and that the proposed ballot title does not fully and fairly include and set forth the question to be voted upon.

The measure involved is denominated Senate Bill No. 100, as the Session Laws of 1931 had not been published when the petition was circulated, and therefore the law could not be described otherwise — the time intervening being insufficient to permit the secretary of state to have the laws compiled and published. However after the tender of petition the "Popular Edition of the Session Laws of 1931" was issued and Senate Bill No. 100 is designated therein as chapter 185.

This law was approved March 11, 1931, and carries no emergency clause. Hence the law would ordinarily go into effect July 1st. It thus became imperative to have the application for review heard promptly and the hearing was set for the 30th of June, 1931.

Upon the return day the secretary of state filed his answer and return admitting the tender of the petition and his rejection thereof in accordance with the statements made in the letter of notification, and in addition thereto he sets forth further reasons in harmony with the allegations made by the taxpayers seeking to intervene.

The taxpayers seeking to intervene were heard by the court as if their application was granted, without deciding their right so to do; but this action of this court in no way determines the right of independent parties to intervene in a review of the decision of the Secretary of State to reject a petition for referendum of a law.

Argument was had on the date set, and in order to prevent possible complications arising from uncertainty as to a referendum this court, on the following day, announced a per curiam decision as follows:

"IN THE SUPREME COURT STATE OF NORTH DAKOTA H.C. Schumacher, H.R. Wood, Allen McManus, Bert Morrison and J.A. Felver, Petitioners, v. Robert J. Byrne, Secretary of State, Respondent.