23 N. 3^rd Street, Apt. 607, Grand Forks, ND 58203-3758                     

Phone (701) 795-4808  E-Mail: mediapower2@wiktel.com

It is the contention of the above-named writer that Article XI, Section 4 of the North Dakota state Constitution reads contrary to, and is therefore repugnant to, Article VI, Clause 3 of the United States Constitution.  Compare the phrasing of these two sections, as underlined:

Article VI, Clause 3 of the U.S. Constitution:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be required as a Qualification to any Office or Trust under the United States.”

**************

Article XI, Section 4 of the North Dakota state Constitution:

“Members of the legislative assembly and judicial department, except such inferior officers as may be by law exempted shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: ‘I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States and the Constitution of the State of North Dakota, and that I will faithfully discharge the duties of the office of ____ according to the best of my ability, so help me God’ (if an oath), (under pains and penalties of perjury) if an affirmation, and no other oath, declaration, or test shall be required as a qualification for any office or public trust.”

*************

NOTE: The North Dakota state Constitution section LACKS the word “executive” from its text! The omission has gone uncorrected since the original draft was submitted to the U.S. Congress in 1889, meaning that North Dakota has been operating now for 118 years, and counting, with a constitution that failed to meet the requirement of Section 4 of the Enabling Act of Feb. 22, 1889, this requirement being that the constitutional convention delegates were to draft and submit to the U.S. Congress a state constitution “that was not repugnant to the United States Constitution.” North Dakota was thus erroneously admitted to statehood on Nov. 2, 1889. North Dakota is NOT a state; it is still a TERRITORY, as per the terms of said Enabling Act. The omission was noticed by members of the first North Dakota Legislative Session in 1890, but Congress was not so advised. This writer has done his duty to disclose and make known this flaw, as per Title 18, Section 2382 of the U.S. Code, and trusts that it will be duly corrected.

*****************************************************************

North Dakota Never

Has Qualified For

Statehood!

The State’s Constitution Has Been Flawed Since 1889

          The United States Congress saw fit to pass the Enabling Act of Feb. 22, 1889, so that four new states could join the Union and assume equal status with other states of the United States.

          The new states to be established by this special Act of Congress were North Dakota, South Dakota, Montana and Washington. The Enabling Act spelled out very strict terms that had to be met; and, after in-depth research, this writer finds that North Dakota never has qualified for statehood, despite the fact that its status as a state has been recognized for some 107 years. Here, then, is a thorough review of the circumstances creating this odd situation.

          Section 4 of the Enabling Act of Feb. 22, 1889 specified that the delegates of each constitutional convention for the four new, proposed states were to draft a state constitution that was not repugnant to the Constitution of the United States, the supreme law of the land. Section 7 of this Enabling Act demanded that the voters of each of the new states had to approve their own  state  constitution  before   that   state

could be considered by the U. S. Congress as qualifying for statehood. Further, Section 7 stated that if it came to pass that the voters of one of the two parts of the earlier, existing Dakota Territory rejected their proposed state constitution, then that part would remain Dakota Territory until such time as a proposed state constitution could gain the voters’ approval.

          By pure oversight, it appears that the delegates of the North Dakota Consti-tutional Convention drafted a flawed state constitution; said voter-approved state  constitution  was  submitted  to  the U. S. Congress for its review and its consent to assume statehood on an equal status with other states of the United States; and President Benjamin Harrison did sign the proclamation on Nov. 2, 1889, making North Dakota a state of the United States.

          It is contended by this writer that North Dakota never qualified for state-hood and that corrective action must be taken, first and foremost, by the President of the United States; the United States Congress; and, lastly, the state legislature of North Dakota, which must correct the existing language of Article XI,  Section 4 of  the  North  Dakota  Constitution.    Since the specifications for statehood were set down by the U. S. Congress, it must be the U. S. Congress which recognizes its own past oversight and takes some course of action  to  “legitimize”  all  past  actions  by so-called  North  Dakota officials since 1889; for,  indeed,  it  is  a  well-established

principle in law that “there can be no de facto  officer  unless  there  is  a  de  jure office.” Merchants National  Bank  v. McKinney, 2 S. D. 106, 48 N. W. 841.

          In the well-known case of  State ex rel. Johnson v. Cahill (1923),  decided by the North Dakota Supreme Court, the fol-lowing was indicated in Section 9300: “Every person who executes any of the functions of a public office without having taken and duly filed the required oath of office, or without having executed and duly filed the required security, is guilty of a misdemeanor; and in addition to the punishment prescribed therefore, he forfeits his rights to the office.” It appears that such a person is classed as an impostor. The same decision, under its Section 9301 hastens to state: “The last section shall not be construed to affect the validity of acts done by a person exercising the functions  of a public office in fact, when other persons than himself are interested in maintaining the validity of such acts.”  But, as pointed out above, North Dakota actually has never had de facto officers acting since 1889; that is, for some 107 years!

          The initial, instructional language of Article XI, Section 4 of the North Dakota Constitution reads as follows:

Members of the legislative assembly and judicial department...

                It is contended that this portion of Article XI, Section 4 contains the flaw; for it should have contained one more im-portant word, as underlined below, to provide for officers of all three branches of state government:

Members of the legislative assembly and the executive and judicial departments...

                As  the  North  Dakota  Constitution has  stood  in  its language since 1889, there is no provision in the North Dakota Constitution itself that members of the executive department take the oath provided in this section.

          Surely the Governor, Lt. Governor, Attorney General, Secretary of State, State Auditor, State Treasurer, Supt. of Public Instruction, and various state Commis-sioners of state departments must also take the oath listed. They, too, must meet the requirement of oath-taking, as spelled out in Article VI, Clause 3 of the United States Constitution.  They are all also bound by the language of Title 4, Section 101 of the U. S. Code, which reads:

Every member of a State Legislature, and every executive and judicial officer of a State, shall, before he proceeds to execute the duties of his office, take an oath in the following form, to wit: ‘I, A B, do solemnly swear that I will support the Constitution of the United States.’

          The North Dakota Constitution, in  its present form, is definitely repugnant to the Constitution of the United States.

          Further, the language of the pre-scribed oath shown in Article XI, Section 4 of the North Dakota Constitution is actu-ally contradictory in fact! That is to say, North Dakota officials cannot solemnly swear to God or affirm that they will support the Constitution of the United States and (in the same breath) the Constitution of the State of North Dakota; for if the North Dakota Constitution is flawed, then ALL PUBLIC OFFICIALS of North Dakota who are directed by law to take  the  said  oath  are  taking  an  oath to

 support a flawed North Dakota Consti-tution. This includes but is not limited to the justices of the North Dakota Supreme Court, the judges of the state court system, all attorneys at law admitted to the North Dakota bar, and the officials of all subdivisions of state government. They are all acting without proper authority.

          It is to be remembered that every citizen of the area, designated as either the State of North Dakota or a remnant of Dakota Territory, is also a citizen of the United States of America; and a citizen’s rights, as a United States citizen, cannot be denied by any legitimate “state” official acting under color of state law. A United States citizen could be far more adversely affected if his rights have been denied by officials who cannot legitimately be con-sidered officials of any particular state! Vindication and justice for past wrongs under color of state law may be hard to secure under these peculiar circumstances.

          This flaw in the North Dakota Constitution  was  reported  by  this  writer, in the presence of a witness, to the U. S. Attorney, the Hon. John Schneider, in Fargo,  North  Dakota  on  Feb. 1, 1995, and this Federal official appears to have not reported this matter, as a violation of Federal law, to higher authorities in Washington,  DC.  The  matter  has  been duly reported and certainly needs correction, if this writer’s contentions are valid.

          It appears that the oversight was noted but not corrected by the first North Dakota Legislature of 1890, the  legislature that passed Chapter 105 (H.B. 234) as a state statute.   Section 4 of said Chapter 105, approved on Mar. 18, 1890, reads as follows: “EMERGENCY. An emergency exists in this, that there is no law prescribing the form of oath to be taken by civil officers as contemplated by the Constitution of the State; therefore this act shall take effect and be in force from and after its passage and approval.”

          This state law, spelling out the oath for civil officers, is today found in NDCC 44-01-05; however, its earlier version in Chapter 105 (H.B. 234) was never sub-mitted to the voters of North Dakota in 1890 to make it a part of the North Dakota Constitution. It is not enough that this  change on oath-taking by the 1890 Legis-lature stand, as it has for some 107 years, as simply a state law; the language of the North Dakota Constitution must reflect the requirements spelled out in the Consti- tution of the United States as well as in current Federal law.

          A state law can be amended-and even repealed-by any North Dakota Legis-lative Assembly. This measure properly should have been put before the voters of North Dakota in 1890 as an important amendment to the North Dakota Consti-tution, so that its language would not be repugnant to the language of the Consti-tution of the United States, the supreme law of the land. This oversight deserves to be corrected for the well-being of the entire nation! This is the first time in our nation’s history that a state has failed to qualify for statehood on such grounds.

          Those serving as North Dakota officials at this time when the state constitution is still flawed should heed the U. S. Supreme Court decision rendered in October, 1991, in the case of Hafer v. Melo  (502 U. S. 21).  The Supreme Court ruled that if a state official denied the civil rights of a United States citizen, then that state official could be held personally liable for such damage to that United States citizen!  

***************************

Thank you, John!