Opinion
File No. 6167.
Opinion filed June 24, 1933. Rehearing denied August 1, 1933.
Appeal from the District Court of Walsh County, Kneeshaw, J.
Appeal dismissed.
Albert Lundberg, for appellants.
An apparent error in the title of a statute, or the inclusion in a title of redundant matter, or surplusage, where not calculated to mislead or deceive, does not affect its sufficiency under a constitutional requirement that the subject of an act be expressed in its title and may be disregarded. 59 C.J. 392; Erickson v. Cass County, 11 N.D. 494; Gray v. Cent. Lumber Co. 140 So. 320.
A statute, or portion thereof, may be repealed directly by an express provision or declaration in a subsequent statute, provided the repealing statute conforms to the procedure prescribed by the Constitution of the state. 59 C.J. 503; Noble v. Bragaw, 85 P. 903; Scales v. State, 1 S.W. 769.
And if the title chosen fairly indicates the general subject of the act, and is comprehensive enough in its scope reasonably to cover all the provisions thereof, and is not calculated to mislead either the legislature or the public, it is a sufficient compliance with the constitutional requirement, even though it be not the most appropriate that could have been selected. 26 Am. Eng. Enc. Law, 579-581; Lewis's Sutherland, Stat. Constr. 2d ed. §§ 116-121.
The title must state the subject of the act for the purpose of information to members of the legislature and the public, while the bill is going through the forms of enactment. Chaffee v. Farmers Co-op. Elev. Co. 39 N.D. 585, 168 N.W. 616; Adams v. Sweden Twp. 9 Pa. Dist. R. 450; Comm. v. Samuels, 29 A. 909; Re Rockledge, 8 Pa. Dist. R. 19; Easton v. Potter Co. 7 Pa. Dist. R. 189; Tingue v. Port Chester (N.Y.) 4 N.E. 625; Gunter v. Texas Land Mtg. Co. 17 S.W. 640; 36 Cyc. 1032; 59 C.J. § 391.
The title to an act may be so restrictive as to confine the body of the act to such phase of the subject as is indicated in the title. State v. Bryan, 50 Fla. 293, 39 So. 929 (citing further 41 So. 786; 39 So. 412 and 104 S.W. 460). 36 Cyc. 1029, note 27; State v. Bocker, 3 S.D. 29, 51 N.W. 1018.
Vested rights are not impaired by the repeal of acts under and by virtue of which they accrued. Craig v. Herzman, 9 N.D. 140; Blakemore v. Cooper, 15 N.D. 5; 59 C.J. 1187, § 723.
W.T. DePuy, for respondents.
In the construction of a statute, as a general rule, the meaning and intent of the legislature should be sought from the whole law and not from the title of the act alone, as where there is a contention that a law is constitutional on the ground that the title of the law embraces more than one subject. Cass County v. Nixon, 35 N.D. 601; 59 C.J. 901, §§ 503, 504.
Repeal can and should be imputed (determined) when other statutes enacted at the same session indicate that it was not the intent of the legislature to repeal without qualification. A clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intent must prevail over literal interpretation. State v. Morehouse, 5 N.D. 406.
The fact that the title did not refer to the emergency clause is of no importance. Wheeler v. South Dakota Land Settlement Bd. 43 S.D. 551, 181 N.W. 359; State ex rel. Driscoll v. Smith, 49 S.D. 106, 206 N.W. 233.
The constitutional restriction provided by § 61, article 2, should be liberally construed. Power v. Kitching, 10 N.D. 254; State ex rel. Erickson v. Burr, 16 N.D. 581; Eaton v. Guarantee Co. 11 N.D. 79; State ex rel. Gaulke v. Turner, 37 N.D. 635; Chaffee v. Farmers Co-op. Elevator Co. 39 N.D. 585.
A statute, or portion thereof, may be repealed directly by an express provision or declaration in a subsequent statute, provided the repealing statute conforms to the procedure prescribed by the Constitution of the state. 59 C.J. 900, § 502.
The inclusion of surplusage in a title does not affect its efficiency under a constitutional requirement that the subject of an act be expressed in its title. 59 C.J. 811; Eaton v. Guarantee Co. 11 N.D. 79; State ex rel. Kol v. N. Dak. Children's Home Soc. 10 N.D. 498.
There is no vested right to a particular remedy which cannot be changed, abolished or impaired by statute, even though the remedy accrued prior to the passage of the statute. 12 C.J. 974, 976, §§ 548, 558, 561; Downs v. Blount, 170 Fed. 15; Lee v. Dolan, 34 N.D. 449.
An appeal from an order dismissing a petition for mandamus to compel the authorities of a college to receive the relator as a student in the freshmen class thereof will be dismissed, where, at the time of the hearing of such appeal, the college year has ended. United States v. Georgetown College, 28 App. D.C. 87; 38 C.J. 552; People v. Parvin, 14 P. 783; Boyd v. State, 53 Ala. 605; Howell v. State, 71 Ga. 227; Montclair v. Ramsdell, 107 U.S. 155, 2 S. Ct. 391; Stone v. Brown, 54 Tex. 342; Breen v. Railroad Co. 44 Tex. 305; State v. Ranson, 73 Mo. 86; Re Public Parks, 86 N.Y. 439, 440; Larned v. Tiernan, 110 Ill. 177; Mills v. Charleton, 29 Wis. 410; McAunich v. Railroad Co. 20 Iowa, 342; Cooley, Const. Lim. 146.
Petitions for the recall of the mayor, and two aldermen of the City of Grafton were filed with the city auditor on or before February 27, 1933; the city auditor certified that he found such petitions sufficient; and on March 4 the council called an election to be held on April 3 — all the proceedings being had under the provisions of § 3835 of the supplement.
In the meantime "An Act to repeal § 3835 of the Compiled Laws of 1913 as amended by chapter 81 of the 1919 Session Laws and as amended by chapter 173 of the 1923 Session Laws of the State of North Dakota relating to the recall of elective officials in cities operating under commission form of government" was passed by the legislature of this state and approved March 9. This act contains an emergency clause and went into effect immediately.
On March 16, the city council, believing it "no longer legally possible to hold said elections on said date or on any other date," cancelled the order fixing the date for the election.
Petitioners, on March 21, applied to the district court for a writ of mandamus to compel the city council "to take all necessary steps to call and hold the aforesaid elections pursuant to said petitions as originally intended and provided for, viz.: April 3, 1933, and that the same be held in the manner provided by law at such time."
The district court refused the writ, determining that section 3835 of the supplement had been repealed and thus no election could be held as demanded.
On March 27 the petitioners appealed from the order denying the peremptory writ, specifying "that the court erred; (a) in holding that the statutes in question had been repealed, and (b) in holding that such repeal (assuming that there was one) would affect the issues here involved."
Petitioners asked to have the election held April 3, 1933 as ordered, believing the statute involved had not been repealed.
This statement of facts in chronological order is sufficient to show that the question submitted is moot.
The statute requires at least ten days' notice of the election to be given by publication. Without this notice no election may be held. No notice of election was given. There was not sufficient time after the appeal to hold the election on the date named, hence, at the time of appeal it was useless to command the city council to give notice of election to be held on April 3rd.
Petitioners say that the date demanded can be disregarded and the council compelled to hold an election at some later date. However, the date set for the election must be "not less than thirty nor more than forty days from the date of the auditor's certificate to the city council — that a sufficient petition is filed." This time has long since expired.
Petitioners say that, for the future guidance of electors in cities governed by a mayor and council, this court should determine the question of whether § 3835 of the Supplement is repealed in toto.
This court is not permitted to give advisory opinions and has consistently declined to decide moot questions, or require the issuance of a writ "where its issuance would be useless or unavailing by reason of events occurring subsequent to the commencement of the proceedings, or where the lapse of time has rendered the relief sought nugatory, or where the writ cannot be enforced." State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706; Miller v. Stenseth, 39 N.D. 257, 167 N.W. 753; State ex rel. Ulander v. Burke Renville Counties, 49 N.D. 151, 155, 190 N.W. 549. See notes in 5 Ann. Cas. 626, and Ann. Cas. 1912C, 247; 5 C.J. 551.
We do not say that under no circumstances will this court determine a moot question. North Dakota Wheat Growers' Asso. v. Moore, 52 N.D. 905, 204 N.W. 834, we set forth under what circumstances a moot question may be determined. We do not consider that this case comes within any of the classes mentioned therein. The questions involved are not "of so great public interest," nor are "the real merits of the controversy still so unsettled that we can and will consider the question involved," as set forth in State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 68, 77, 139 N.W. 83, Ann. Cas. 1914D, 776. Public policy does not demand an authoritative determination of the question involved.
The appeal is dismissed.
NUESSLE, Ch. J., and CHRISTIANSON, BIRDZELL and BURKE, JJ., concur.