The Nonpartisan Leader Newspaper, September 28, 1916, Page 5

ow the Court Consults History ..~ Find Out What the Péople Meant and Then Rule the Opposite Is the Paln Adopted by Qut Supreme Judges " Birdseye view of the city of Bismarck. The state’s cap ings and handsome homes and js growing rapidly. strued them in their adop- ' tion, if possible, and the public history of the times should be consulted and should have weight in arriving at the copstruction.’\’ e . _ This is good law and it is common sense. It is the language of Judge Cooley of the Michigan supreme court in deciding an important constitutional question in. that state, reported in Volume 23, page 499, of the Michigan reports. It is such good law ‘and such good common sense that the supreme court of Washington adopted it as its rule in an important constitutional case, as reported in Volume 85, Washington reports, page 260. ) ..In__other words -constitutions and amendments to them are adopted by the -people and the first consideration to be taken into mind by courts in determin- “ ONSTITUTIONS are to be x ‘ construed as the people con- ing what constitutions mean is WHAT THE PEOPLE MEANT WHEN.THEY ‘ADOPTED PROVISIONS THAT ARE QUESTIONED. IN COURT.. In addition courts should be familiar with the .course of eyents and the history of the times and should ' give these 'things weight in determining what the people meant when they adopted a certain con- stitutional provision. i In 1914 the people of North Dakota by a two-to-one vote adopted an' amend- ment to their constitution which in plain language reserved to them the right to _ initiate future amendments to the con- stitution by petition. Hitherto all con- stitutional amendments could be initiated only by the legislature. This amend-" ment, adopted in 1914, was heralded by the legislature which framed it and by the newspapers which reported it as being exactly what it purported to be by its plain language—a provision which reserved to the sovereign people, the . source ‘of all the government, an addi- . tional right that they-had not before had, the right to initiate by, petition their own amendments to their own constitution.- EXTRAORDINARY REASONING USED BY SUPREME COURT The Leader has already reported how the present supreme court of North . Dakota in a decision just rendered has made this right of the people reserved by them in 1914 void, until such time as a future legislature sees fit to amplify it by additional laws.. This has the effect of preventing any initiation of con- stitutional amendments by the people this year. A further examination of this reaction- ary decision, possible since the full text - ‘of the”'decizion has become availahle, ghows what remarkableé ‘reasoning the supreme court employed and how com- pletely it-has accepted the form instead of the substance. =~ o “In the first place the court flies in the writings of real legal authorities? face of the rule of law and common sense laid down by Judge Cooley of Michigan, which has been adopted by many courts. It does this IN SPITE OF THE FACT THAT IT QUOTES WITH APPROVAL THIS RULE OF LAW. The North Dakota supreme court has made Judge Cooley’s rule its rule, BUT IT PRO- CEEDS TO DECIDE AGAINST THE 1914. CONSTITUTIONAL . . AMEND- MENT IN SPITE .OF THE RULES . LAID DOWN ' BY JUDGE COOLEY. AND ADOPTED BY PROGRESSIVE COURTS ELSEWHERE. - PEOPLE HAVE NOT YET § EARNED RIGHT TO VOTE The supreme court of, North Dakota did not ‘“construe the constitution as the people construed it in its :adoption.” It did not fairly “consult and give weight ‘to the public history .of the times in arriving at the decision.” The result is that the right of the people to initiate constitutional amendments is wiped out. The supreme court says the people did: not free themselves from dictation by the legislature, as they thought they were doing when they adopted this amend- ment, but were merely. again placing themselves in the hands of the legisla- ture, which would have to pass additional laws before the right reserved to the people to initiate by petition can become " effective. : . How far the supreme court got from the rule of Judge Cooley, which it pre- tends to quote with approval, is shown by the fact that it goes back of the plain reading of the amendment. It assumes that when the people voted for this con- stitutional amendment they did the same thing. It assumes that the people did not - accept the plain wording of the amendment, which is exactly opposite to the presumption which the court should have followed had it really been follow- ing Judge Cooley’s rule.. For Judge Cooley says that constitutions should be- construed “as the people construed them in their ' adoption.” - Now everybody knows that-the people did not see any technical defects in this amendment; that they did accept it at its face value' when they voted for it and they believed it . was giving them the right of petition in. constitutional amendments WITHOUT HAVING TO DEPEND. ON. THE LEGISLATURE. But the supreme court says that ‘in passing this they were merely permitting future legislatures to provide machinery by which the right of - petition on constitutional amendments could be * exercised. Thus, while the people thought they were gettirig away from useless check by the legislature, the supreme court finds they were only putting themselves in the hands of future legislatiires. iy A A FUTURE LEGISLATURE CAN KILL AMENDMENT ~° And right here is where the most It L ital city has a_ beautiful location and is h thofoughly modern and well-grouped city.. A half million dollar paving project is under construction. vicious part of the supreme court decision should be pointed out. The court has held that the people will not only have to depend on future legislatures to make this amendment effective, BUT FUTURE LEGISLATURES, UNDER THIS DE- CISION, CAN COMPLETELY NUL- LIFY THE AMENDMENT. Let us quote again the amendment that . the court . holds is insufficient, putting eémphasis on the words in it with which the ‘decision deals:" R ) : “Any amendment or amendments to this constitution may also be proposed - by . the people by the filing. with the secretary of state AT LEAST SIX MONTHS previous to the general elec- tion of an initiative petition containing the signatures of . AT LEAST 25 per cent of the legal voters in each of NOT LESS THAN one-half of the counties of the state.” This is the provision that the supreme court nullifies by claiming it is not self- executing as it stands and hence not now effective. In reaching this decision the court claims that because of the use in the provision of the words “AT LEAST” and “NOT LESS THAN,” the -people when they adopted this provision did not fix definite. requirements for initiative petitions, but only fixed a minimum, so that future legislatures could fix the actual requirements at any standard they - desired, so long as the standards were not less than those fixed in this provision. The effect of the decision is to leave the way open for this provision of the constitution to be absolutely miscarried. Under this interpretation, the supreme court admits, the legislature could make the time for filing the petitions, if it wanted to, 10 years before the general election; it couid make the per cent on the petitions required 95; it could make the number of counties to be represented three-quarters or nine-tenths of the counties in the state. Thus the provision of the constitution would be absolutely Auseless to the people who adopted it in good faith, believing it was giving them - substantial relief from the former rule " that only the legislature could initiate ¢onstitutional amendments. The supreme court reasoning thus becomes absurd. In its anxiety to see that all the commas were placed right, all the “i’s” properly dotted and all the technicalities of the law lived up to, the court has turned its back on the plain wording of the provision, has laid stress on forms instead of substance and gener- ally handed down about-as reactionary and technical a decision as could be found in a law book. . Constitutions are to be construed in the light of the public history of the times; says Judge' Cooley of Michigan. Has the supreme court, then, fairly con- .Sidered the public history of the times in an honest effort to see whatthe people intendéd when they adopted the pro- ' In the capital removal case the supreme court has .put on record its ideas about popular - government. Not: what the people meant to do, but what the legislature meant to }et the _people do, is the important thing in the eyes of the court. How does this square with ‘the W _doesn’t square. The court makes the law fit the case. It has many fine build-t_ own constitutional amendments? The public history of the times would be something like this: HELPING LEGISLATURE TO ‘DEFY PEOPLE’S WILL Throughout- the United States a pro« gressive move has been under way for years 'to restore government more fully to the nands of the people. The initia- tive and referendum has been advocated with success in over haif the states of the unioa, which have now made it a part of their constitutions. The initiative and referendum pui the.matter of pass< ing laws, amending constitutions and repealing laws passed by legislatures in tie hands of the people, when there is sufficient demand for this procedure, North Dakota’s people for years urged the legislature to give them opportunity, to amend their constitution to provide for the initiative and referendum. Legislature after legislature, dominated by the reactionary forces, refused to submit initiative and referendum amend- ments to the people. Finally the 1911 legislature initiated amendments providing for these new progressive features of popular governs ment, but it was left to the 1913 legis- lature to determine just what sort of initiative and referendum provisions the reople should vote upon. By this time the legislature knew that it had to pro- vide for constitutional amendments for the initiative and referendum. The public demand had reached a point where it could not longer be denied. But the 1913 legislature was reactionary in com- plexion. It did not want to submit to the people constitutional amendments for the initiative and referendum, but it knew it had to. So it decided to .submit just as conservative provisions as it could. It turned down the liberal and fair initiative and referendum bills that other states had adopted and.decided to let ‘the people vote on constitutional amendments that were reactionary coms pared with other states. a4 . But even the -conservative amend« ments to the constitution adopted by the 1913 legislature for submission to thae people in 1914 were better than nothing, The people were anxious to have thg initiative and referendum, so long denied them, and they adopted these provisions by overwhelming majorities in 1914. One provision adopted provided that the people could initiate their own laws by, petition and get a popular vote on them, or could hold up and have submitted to the voters laws passed by the legisla« ture. Aaother provision provided that constitutional amendments - could bq‘ initiated by the people by petition.’ SUPREME COURT IGNORES ;< INTENT OF THE PEOPLE _ Both these provisions were voted on at the same timc. In each case the peopla (Continued on page 20) - { “-‘".{ v