The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1921-11-19
BASICLAW OF
STATEFL0UTED
SAYS BIRDZELL
Says Constitution is Reduced to
"Scrap of Paper" Under
Tax Law Decision
GIVES MAJORITY OPINION

The constitution of North Dakota is
reduced to a mere scrap of paper" il
the opinion set forth in upholding the
constitutionality of the state tax
limitation law denies relief on the
pretext the provisions (which are
expressly mandatory and prohibitory
are directory merely says the
opinion OF Justice L. E. Birdzell,
speaking for majority of the
court in holding that the tax limita-
tion law UNCONSTITUTIONAL Justice
Bronson and Chfistianson subscribe
to the opinion. of'..
The validity Of the law was upheld
when two Judges. Robinson and
Grace, held it constitutional and three
judges held it unconstitutional, it be-
ing required that four judges hold a
law unconstitutional to make such a
/ decision effective: The opinio of the
three pudges holding the law valid
was not filed at the time decision was
rendered, the decision being pro-
! mulgated as quickly as possible be-
cause it affected this years tax levies
Discusses Constitution
After holding the purpose of the
bill was changed during passage,
thereby making it unconstitutional,
Justice Birdzell discusses further the
case involved as follows:
"The opinion of Mr.. Justice Robin
son argues that because excessive
taxes had become political issue, the
In0ic LOT NJ tn nhQorvn
constitutional requirements in the pas
sage of legislation to relieve the situa-
ton, and that. il bound in any way
to observe such requirements, the
failure to do SO should be overlooked
in view of the concurrence being un-
animous in one body and nearly so in
the other. The further argument in
that opinion, as We read it, is that
as there are certain constitutional
provisions with reference to the man
ner in which adjournments be taken,
ETC.. which must of necessity be of a
directory character, it follows that all
requirements as to the manner OF
passing legislation are directory. 1t
will readily be perceived that this
logic strikes out of the Constitution
that portion of the Bill of Rights
which is contained in Section 21 and
which reads: The provisions of this
constitution are mandatory and pro-
hibitOry unless, by express words,
they are declared to be otherwise.
This is stricken out in so far at least
as it has any application to legisla-
tion. 1t is we'll established prin-
ciple of constitutional law that the
courts will not interfere with the
legislature in the performance OF
legislative functions nor direct how
they are to be performed. From this
it necessarily follows, under our
system of government through
coordinate branches that those who
are injured by the failure of the legis-
lature to observe the mandatory re-
quirements laid down in the Con-
stitution can only seek relief in the
courts after the legislative act is COM
pleted. If relief me then denied on the
pretext that provisions which are ex-
pressly mandatory and prohibitory are
directory merely the constitution Is
reduced to mere scrap of paper. IT
no longer stands as the fundamental
law of the state. It's protective fea-
lures are in reality but 'delusion and
a snare And if the doctrine of this
opinion is to become the controlling
principle of constitutiOna/l law in this
state the Constitution should be re-
pealed in toto as document inimlcal
to the public welfare on account OF
the false hopes it inspires and the false
security it gives to individual rights
against governmental encroachment.
The whole history of our constitution
al experience will be searched in vain
to find an instance where legislative
attempts to settle political issues or
unanimity of action on given sub
ject has been judicially recognized as
reason for subverting the plain
language of the ornamental law. Has
the day of actual legislative supre-
macy arrived? Are the Bill Of Rights
and the Constitution no longer the
law of the land?
The I Judges Amendment
at may be true that the amend
ment to Section SO of the Constitu-
ton requiring the vote Of four judges
of this court to determine that an act
of a legislative assembly is uncon-
stitutional, evidences desire on the
part of the people to accept more
completely than they have in the past,
legislation at its face value: but by
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