State Ex Rel. Strutz v. Baker , 71 N.D. 153 ( 1941 )

The "Motor Vehicle Fuel Tax Act," known as chapter 195 of the Session Laws of 1941, is entitled: "An Act Transferring the administration of the Motor Vehicle Fuel Tax Laws and the collection of Motor Vehicle Fuel Taxes from the State Auditor to the State Tax Commissioner, together with the administration of licensing Sellers and Buyers of tax exempt Motor Vehicle Fuel and the granting of refunds of Motor Vehicle Fuel Taxes as provided by the Initiated Measure of June 30, 1926, with amendments thereto, and Laws of 1939, chapter 147, and Laws of 1939, chapter 170, pertaining to Motor Vehicle Fuel Taxes, and transferring all the rights, powers and duties now placed in the State Auditor and the State Auditor's Department under the laws to the State Tax Commissioner, together with the files, records, equipment and supplies pertaining thereto, and repealing all Acts and parts of Acts in conflict therewith."

The measure received a majority of the votes in each house of the legislature, and was signed by the governor, but it did not receive the vote "of two thirds of all the members elected to each house." An action was brought to have the law declared null and void and the state tax commissioner enjoined from interfering in any way with the work of the state auditor.

The district court held that the purported act had not received the requisite constitutional vote to insure its adoption, and the commissioner was permanently "restrained and enjoined from assuming or taking jurisdiction of or over any rights, power and duties possessed by the State Auditor and the State Auditor's Department under the initiated measure of June 30th, 1926, or amendments lawfully enacted thereto, relating to motor vehicle fuel tax law."

Judgment was entered accordingly, and the commissioner appeals.

A measure, known as the Gasoline Tax Measure, the title of which prescribes: "An Act to Impose a Tax Upon the Sale of Motor Vehicle Fuels; Providing for the Collection of Said Tax, for Reports of Sales of Such Motor Fuels and for the Disposition of the Revenue Derived Therefrom; Regulating the Sale of Such Fuels and Fixing Penalties for the Violation of This Act. Repealing all Acts or parts of Acts in conflict with the provisions of this act," was initiated, and approved by the people at the election held June 30, 1926.

This measure consists of ten sections. Section 1 is devoted to the definition of the terms, "Motor vehicles," "Motor vehicle fuels," and "Dealer."

Section 2 requires every dealer in motor vehicle fuel to "render to the state auditor on forms prescribed, prepared, and furnished by the state auditor, a sworn statement of the number of gallons of motor vehicle fuel sold or used by him . . . during the preceding calendar month. . . ."

It requires him to "pay a license tax of two cents per gallon on all motor vehicle fuel used and sold by him. . . ."

Section 3 permits such dealer to charge and collect this license tax "as a part of the selling price."

Section 4 requires such dealers to "file a duly acknowledged certificate with the state auditor, on forms prescribed, prepared and furnished by the said state auditor," showing the name under which he transacts business and the place or places of business.

Section 5 specifies when this license tax shall be paid to the state auditor and makes provision for the state auditor's turning over the money to the state treasurer to be credited to the state highway commission and appropriated and used by the commission for the highways under its jurisdiction.

Section 6 makes provision for the reimbursement to purchasers by the state auditor of the sums paid by them for motor vehicle fuel furnished for certain purposes and provides the method of making reimbursement.

Section 7 requires the records of all such dealers to be open for "inspection by the state auditor or by any agent or employee thereof duly authorized by him."

Section 8 makes it unlawful for any person to accept from any dealer in the original package any such motor vehicle fuel without having the invoice delivered, and requires all purchasers of motor vehicle fuel "in the original package in which the same shall have been imported" to pay to the state auditor the tax provided in the act in case the dealer has not made payment.

Section 9 makes general provision for penalties for violating any provisions of the act.

Section 10 is merely the usual repealing clause attached to statutes.

This act was initiated under the provisions of § 25 of the Constitution of this state, as amended by what is known as article 26 of the amendments. This section of the Constitution prescribes that "The word `measure' as used herein shall include any law or amendment thereto . . . or enactment of any character.

". . . 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."

Legislation by "Initiation" is a power which the people have reserved to themselves under the provisions of our Constitution. It is subject to the constitutional provisions provided for the enactment of legislation. See Preckel v. Byrne, 62 N.D. 356, 361,243 N.W. 823, 825.

The people legislate through their agent known as the legislature, or may legislate as prescribed by this section 25 of the Constitution as amended. When the people legislate by their agent, the legislature has the power to amend and repeal its own acts when in its judgment it sees fit; but with reference to initiated measures, this power of the legislature is limited partially. Such initiated measure may not be repealed or amended "except upon a yea and nay vote upon roll call of two thirds of all the members elected to each house." See State ex rel. Truax v. Smart, 48 N.D. 326, 184 N.W. 623; Boutrous v. Thoresen, 54 N.D. 289,209 N.W. 558.

The history of the legislation dealing with this initiated measure shows that from time to time several amendments were made. Chapter 178 of the Session Laws of 1927 purported "to Amend and Re-enact § 5 of the Initiated Measure," but did not in any way affect the duties of the auditor, and still required that officer to receipt for the license tax, pay the money over to the state treasurer to be credited to the state highway commission for the construction and maintenance of the highways under its jurisdiction. This amendment received the requisite two-thirds vote. The effect of "re-enactment" and its scope is well set forth in Jessee v. De Shong (Tex Civ App) 105 S.W. 1011, 1015. Re-enactment continues the law in force. There may be some changes, but the law is the same law, so far as law is concerned.

Chapter 166 of the Session Laws of 1929 is "An Act to amend and re-enact §§ 2, 3, 4, 5, and 6 of the initiated measure."

Certain amendments were made in these sections dealing with the duties of the dealer in motor vehicle fuel, requiring him to be the holder of a license issued by the state auditor, providing for the revocation of the license, furnishing of a bond, and such matters, as well as the increase of the tax from two cents per gallon to three cents. This amendment also made some changes with reference to the method of the state treasurer in crediting the amount of money received and in the method of reimbursement to the ones who paid tax on motor vehicle fuel when the same fuel was to be used for certain specific purposes. The purpose and principle of the initiated measure in placing the administration in the hands of the auditor remained unchanged in any particular. This chapter 166 of the Laws of 1929 received the requisite two-thirds vote of the members elected in each house.

In 1931 the legislature amended and re-enacted §§ 2, 3, and 5 of the initiated measure, but the proposed amendment was referred and disapproved.

In 1935 the legislature enacted chapter 172 of the Session Laws of that session, amending and re-enacting § 4 of chapter 166 of the Laws of 1929 (which had amended § 4 of the initiated measure), and also amending and re-enacting § 6 of chapter 189 of the Laws of 1931 (which had amended § 6 of the initiated measure). These amendments do not in any manner remove power of administration from the state auditor's office except in the matter of refunds.

In 1939 the legislature enacted chapter 147 of the Laws for that year, which was intended to repeal chapter 189 of the Laws of 1931, and otherwise purports to be a general law dealing with the "purchase of gasoline to be used solely for agricultural and industrial purposes without the payment of a gasoline tax on the purchase price thereof; licensing purchasers and sellers; providing penalties; . . ."

However, nowhere is the Law of 1931 repealed by specific declaration.

This chapter 189 of the Laws of 1931 had amended and re-enacted chapter 166 of the Laws of 1929, which had amended and re-enacted five sections of the initiated measure. It is in chapter 189 of the Laws of 1931 we have the first reference to the tax commissioner, and this dealt merely with refunds. The applicant for a refund presented his petition to the commissioner rather than to the state auditor, and the auditor paid after the commissioner passed upon the application.

Chapter 147 of the Session Laws of 1939, in the title, provides that the act is to repeal "chapter 189 of the Session Laws of North Dakota for 1931," and apparently replaces refunds in the hands of the state auditor, for the statute deals with the purchase of gasoline to be used solely for agricultural and industrial purposes; provides that this gasoline is tax exempt; that the auditor issue the licenses to sell this tax exempt gasoline; has the power to formulate rules and regulations for the administration of the law; and that the purchasers are entitled to the refund as provided by chapter 189 of the Laws of 1931, which is the law which this chapter 147, by its title, states is intended to be repealed. Clearly, it was the intent of the legislature in chapter 147 of the Laws of 1939 to supplement the initiated measure in so far as the same had not been amended constitutionally.

This statute (chap 147) deals largely with the matters involved in the initiated measure of 1926, provides for the issuing of licenses by the state auditor, the giving of receipts by the dealer in the form and colors prescribed by the auditor, the filing of copies of the receipts with the auditor, the right of that official to refuse to issue a license and to cancel licenses already issued, the payment to the state treasurer of the fees collected by the auditor, and authorizes the auditor "to formulate rules and regulations for the administration of this act. . . ."

Though this chapter 147 of the Session Laws of 1939 does not in express terms refer to the measure initiated in 1926, nevertheless, it is legislation on the same subject; changes the method of administration of the initiated law and some of its provisions; and to that extent amends certain portions of the initiated measure; or, if considered preferable to state it otherwise, it repeals those provisions not in harmony with the provisions of chapter 147 of the Session Laws of 1939, and substitutes therefor the provisions stated in the chapter.

This appears to be the history of the legislation dealing with the initiated measure known as "The Gasoline Tax Measure," the title of which has heretofore been set forth. It is clear, therefore, that certain sections of this initiated measure, to wit, §§ 1, 7, 8, 9, and 10 of the initiated measure, were not amended at any time prior to 1941.

Through all of this legislation, the administration of the motor vehicle fuel tax has been in the hands of the state auditor, and under the supervision of that official, except in the matter of refunds. The amendments, in general, follow the language of the initiated measure, adopt its purport, and continue it in effect. It is the initiated measure with amendments in details as made by the legislature.

Chapter 195 of the Session Laws of 1941, omitting the title, is as follows:

"Sec. 1. All of the rights, powers and duties formerly possessed by the State Auditor and the State Auditor's Department under the Initiated Measure of June 30, 1926, with amendments thereto, relating to motor vehicle fuel tax laws, the collection of taxes, the licensing of purchasers and dealers, the administration of refunds and all of the rights, powers and duties formerly possessed by the State Auditor and the State Auditor's Department in the administration of Chapter 147, Laws of 1939 and Chapter 170, Laws of 1939, are hereby transferred to the State Tax Commissioner who, from the effective date of this Act, shall assume the administration of such laws relative to the collection of motor vehicle fuel taxes, the licensing of purchasers and sellers of tax exempt motor vehicle fuel, the granting of refunds and all other rights and duties under said laws.

"Whenever the officer designated in said laws as the State Auditor shall be granted any power or charged with the performance of any duty in connection with the enforcement and administration of any laws heretofore specified, or any acts amendatory thereto, said power so vested in said State Auditor shall be vested in the State Tax Commissioner, and said State Tax Commissioner and his assistants shall perform all of the duties required by said laws to be performed by said State Auditor or the State Auditor's Department.

"Sec. 2. All of the files and records in the State Auditor's Office, pertaining to the administration of the motor vehicle fuel tax laws, together with all equipment and supplies pertaining thereto, shall be transferred from the State Auditor's Office to the office of the State Tax Commissioner.

"Sec. 3. All Acts and parts of Acts in conflict herewith are hereby repealed."

It is the purpose of this act to so alter the initiated measure of 1926 that its entire administration is taken from the auditor and lodged with the commissioner.

It being admitted that chapter 195 of the Session Laws of 1941 did not receive a two-thirds vote of the members elected in each house, it becomes important to determine whether, under the Constitution, it was necessary for this bill to receive such a vote before it became a law.

Appellants contend that because certain portions of the initiated measure had been amended by the requisite constitutional vote, therefore, because of such amendment, the initiated measure ceased to be such in law, and the measure as amended became a legislative enactment, no longer subject to this constitutional limitation as to legislative vote.

As pointed out in State ex rel. Forchheimer v. Le Blond,108 Ohio St. 41, 50, 140 N.E. 491, 494, "A broad definition of the word `amendment' would include any alteration or change. . . ."

"In legislative parlance `amendment' is an alteration or change of something . . . established at law." The distinction between an amendment and a revision is set forth in this decision, State ex rel. Corry v. Cooney, 70 Mont. 355, 361, 225 P. 1007, 1009. A repeal destroys; an amendment keeps alive. The distinction between the terms is well stated in State ex rel. Gamble v. Hubbard, 148 Ala. 391, 41 So. 903, 905. This view is cited and approved in Gregory v. Cockrell, 179 Ark. 719, 18 S.W.2d 362.

"An amendment is a change or alteration of a law or of some of its provisions . . . and merely continues a law . . . in a changed form. . . . An amendatory act . . . never purports to repeal an act or section as it previously existed but only changes or amends it to read as therein stated." Chicago v. American Tile Gravel Co. 282 Ill. 537, 540, 118 N.E. 730, 731.

See also State ex rel. Crain v. Moore, 339 Mo 492, 496, 99 S.W.2d 17, 19.

In De Motte v. De Motte, 364 Ill. 421, 4 N.E.2d 960, the court was construing a statute which on its face appeared to be independent, but in fact merely introduced new features into the old act, and held such change to be an amendment, quoting with approval this rule set forth in Galpin v. Chicago, 269 Ill. 27, 36, 109 N.E. 713, 716, LRA1917B, 176; "even though an act professes to be an independent act and does not purport to amend any prior act, still if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject so as to make of the old and the new a connected piece of legislation covering the same subject, the latter act must be considered an amendment of the former."

Appellants contend further that this chapter 195 is not an "amendment" as the term is used in § 25 of the Constitution as amended, but merely transfers its adminstration from one department to another.

This contention that the transfer of the power of administration from the state auditor to the tax commissioner is not an amendment of the initiated measure is based upon the theory there is no amendment or change in the powers — merely a transfer. However, where powers are transferred in such manner, the provision of the initiative measure is interfered with; and, therefore, the transfer of the duties from the auditor to the commissioner is either a repeal of that portion of the initiated measure, or it is an amendment. In either event, it is subject to the constitutional provision under consideration.

Where an independent statute transferred to a board of police commissioners of the city the power to regulate the police department, which power had been and was lodged in the mayor and aldermen by the municipal charter, it was held that such proposed change was an "amendment" of the charter. Little v. State,137 Ala. 659, 35 So. 134.

It is the contention of the respondent that where an initiated measure consists of several sections, some of which have been amended properly and some remain unamended, any subsequent attempt to amend any of these provisions must be tested by the constitutional provision which limits the power of the legislature, and such attempted amendment must have the vote prescribed by the Constitution; that an amendment does not destroy the effect of the initiation, but the initiated measure remains with life and in operation.

Chapter 195 of the Laws of 1941 is an amendment of the initiated measure. It transfers the administration of the law covering the whole field from the office of the state auditor to that of the state tax commissioner. It also deals with that part of the initiated measure which heretofore has been unamended. It is, therefore, at variance with the expressed will of the people, and a change thereof.

For the people, through the initiative, to say that certain duties shall be performed by the state auditor is a clear statement of the will of the people. For the legislature to change this provision is an exercise of power over an initiated measure. In such case the exercise must be in harmony with the constitutional provisions.

Much has been said in brief and argument on the equality of the legislation enacted by the legislature with that enacted by the people.

Section 25 of the Constitution, as amended by article 26 of the amendments, provides an additional method of legislation from that contained in the original Constitution. These two methods, their scope and purpose, are referred to in Baird v. Burke County, 53 N.D. 140, 148, 205 N.W. 17, 19, and State v. Houge, 67 N.D. 251, 259, 271 N.W. 677, 681. Were it not for the constitutional provision quoted, there would be no constitutional provision preventing a legislature from repealing or amending the measure in whole or in part. But our Constitution places a limitation upon such right of the agent of the people to repeal or amend an initiated measure. It takes into consideration the necessity for change to accommodate law to changing conditions; but it also recognizes the fact that such an initiated measure is the direct act of the people, and not its act through its agent; and, therefore, it is only when the overwhelming judgment of the agency indicates the necessity for a change that such change can be made. Clearly, it is the purpose of the Constitution to place special emphasis upon the act of the people when exercised directly.

This constitutional amendment, article 26, states that while the legislative power of the state is vested in the legislature, "The people, however, reserve the power . . . to propose measures and to enact . . . the same at the polls. . . ." It further provides in harmony therewith that "The first power reserved is the initiative."

Before the legislature can affect an initiated measure, it must either repeal it or amend it. To claim that after an initiated measure is amended constitutionally by the legislature, it ceases to be the initiated measure and becomes purely the act of the legislature is, in effect, to claim that the initiated measure is repealed, for this measure must either exist or cease to exist.

"The intention to repeal and the intention to merely re-enact particular provisions of a former law are both determinable from the same source in the context and relation to the objects of the act, and must be separated and found which intent exists in the context and relation to the object of the act and this provision therein before the court can proceed to interpret it. The one term is opposed to the other. If it were the intention to merely re-enact the particular provision of a former law in the new act operative in its own terms and remedy independent of the other portions of the act, alike in the new as in the old act, there is no repeal, because repeal is the absolute doing away with for all purposes. If it were the intention to repeal the particular provision of the former law occurring in the new law, evidently not having the particular provision operative in its own terms independent of other portions of the act, or so interweaving it with other portions as to make it dependent upon other particular provisions for its enforcement, there is no mere re-enactment in the sense used, because re-enactment is to continue in force the particular provision unchanged and as it was before, and not do away with for any purpose." Jessee v. De Shong (Tex Civ App) 105 S.W. 1011, 1015, supra.

A statute amended does not lose its identity. It is still the statute. The initiated measure being amended constitutionally, it is the same as if the provision in the amendment had been in the bill as initiated. For the legislature to make another change of this same measure requires the same constitutional vote. This applies to every section of the initiated measure, whether amended or unamended.

Diligent search by counsel on both sides, as well as by the members of this court, has disclosed no case similar to the one at bar. We do not find any decision dealing with a constitutional provision limiting amendment or repeal unless a certain vote is obtained in the legislature.

A study of the text in 28 Am Jur 177, Initiative, Referendum, and Recall, § 44 discloses differences of opinion as to the effect upon the legislature of a vote of the people through the initiative procedure. The illuminating note to 97 A.L.R. 1046 discloses, however, this juristic approach — that where the legislature is limited in its attitude toward an initiated measure, such limitation holds good during the entire life of the measure.

If, in the judgment of the legislature, the purpose of the measure has been accomplished, and changes of condition require alteration, the legislature has the right to repeal the initiated measure by the constitutional vote. When once repealed, the measure is dead. Then the legislature may, as its judgment dictates, substitute such legislation as the exigencies of the occasion require.

Clearly, the people had this in view when article 26 of the amendments was adopted, for the legislature is given the power to repeal, as well as to amend. So long as the legislature does not see fit to repeal, then the law stands, and all amendments thereto must be made as required by the Constitution.

It is the clear intent of the Constitution that such an initiated measure shall remain a law, so far as the legislature is concerned, until repealed in the manner required. It is also clear that it is the constitutional intent that such an initiated measure shall remain a law, except in so far as it may be amended by its agent in a constitutional manner. Certainly, when this agent, vested with the power to amend under certain circumstances, amends only in part, the portion that is unamended still remains as the initiated measure and before such part may be changed, it must receive the constitutional vote required of the agent, the legislature. In addition, as pointed out, amendments to an initiated measure do not destroy the initiative character of the law. The initiated law is there until repealed. Hence, before the legislature in 1941 could amend the initiated measure by transferring all of the powers and duties therein conferred upon the state auditor to the state tax commissioner, such proposed change must have the approval of two-thirds of the elected members of each house. Not having received such a vote, chapter 195 of the Session Laws of 1941 was not adopted constitutionally, and, therefore, is not a law of the state. The judgment of the lower court is affirmed.

CHRISTIANSON and NUESSLE, JJ., concur.