Department of State Highways of State v. Baker
| Decision Date | 16 January 1940 |
| Docket Number | 6643 |
| Citation | 290 N.W. 257,69 N.D. 702 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A subordinate ministerial officer to whom no injury can result and to whom no violation of duty can be imputed by reason of compliance with the statute, may not question the constitutionality of the statute imposing such duty.
2. Under the circumstances in this case wherein it appears that the state auditor is a constitutional officer against whom a proceeding is brought to compel her to disburse public funds under a statute which the attorney general, who is her legal adviser and is also a constitutional officer, has advised is unconstitutional, and the question of constitutionality is of great public importance affecting many people, the public revenue of the state and one of the major departments of the state government, it is held that the state auditor may question the constitutionality of the statute upon which the proceedings are based.
3. Chapter 170, Session Laws 1939, does not amend or change any other statute either directly or by implication.
4. Section 64 of the Constitution was not intended to require the re-enactment and publication at length of all definitions that might be employed in the construction of the law. Reference to other statutes may be made to determine the meaning of terms used as an aid in determining legislative intent.
5. Where a statute levies a tax, provides for ascertaining the amount to be paid, and determines where the proceeds shall go, the failure to make specific provisions for detailed procedure of collection of the tax does not render the statute violative of Section 64 of the Constitution.
6. " Where a part of a statute is unconstitutional, that fact does not require the courts to declare the remainder void also, unless all the provisions are connected in subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other." Malin v. Lamoure County, 27 N.D. 140, 145 N.W. 582, 50 L.R.A.N.S., 997 Ann.Cas.1916C, 207.
7. The penalty provisions referred to in Chapter 170, Session Laws N.D.1939, are held not to form the inducement for the enactment of the law and even if void would not invalidate the remainder of the statute.
8. The system of allowing refunds on motor vehicle fuel was abolished by a contemporaneous statute (Chapter 147, Session Laws N.D.1939) and the reference thereto in Chapter 170 Session Laws N.D.1939, does not present a question of unconstitutionality under Section 64 of the Constitution.
9. For reasons stated in the opinion, it is held that Chapter 170, Session Laws N.D. 1939, is not violative of either Sections 62 or 186 of the Constitution.
Appeal from District Court, Burleigh County; Fred J. Jansonius, Judge.
Mandamus proceeding by the Department of State Highways of the State of North Dakota, and J. S. Lamb, as State Highway Commissioner and the officer in charge of the Department, against Berta E. Baker, as State Auditor of the State of North Dakota, and John Omland, as State Treasurer of the State of North Dakota, to compel Berta E. Baker to issue warrants. From an order denying the application for the writ of mandamus, the petitioners appeal.
Order reversed.
Chas. A. Verret, George F. Shafer and Robert H. Bosard, for appellants.
Alvin C. Strutz, Attorney General, for respondents.
Morris, J. Burr, J., concurs. Nuessle, Ch. J. I am not prepared to subscribe to all that is said in the foregoing opinion, but I agree with the propositions stated in the syllabus and, therefore, concur in the result reached. Christianson, J. (dissenting). Burke, J., concurs in dissenting opinion.
This is an appeal by the Department of State Highways and the State Highway Commissioner from an order of the district court denying an application for a writ of mandamus.
On June 30, 1926, the people of North Dakota approved an initiated measure known as the Motor Vehicle Fuel Tax Law, which obligated dealers as defined by the act, to pay a tax for the privilege of engaging in the business of selling motor vehicle fuel, the tax being measured by the number of gallons used and sold by the dealer. This initiated measure, as amended, is generally termed the Motor Vehicle Fuel Tax Law. The tax thereunder is 3 cents per gallon. The legislature of this state at its 1939 session, undertook to levy "a special license tax of 1 cent per gallon of motor vehicle fuel used or sold" by licensed dealers (N.D. Sess. Laws 1939, chap. 170). For the sake of brevity, we will hereafter refer to this tax as the 1 cent gas tax. Chapter 170 incorporates by reference many of the provisions of the motor vehicle fuel tax law including provisions for the assessment and collection of the tax. The state auditor has collected and deposited with the state treasurer about $ 320,000. Of this sum $ 141,523 has been paid by the taxpayers under written protest. Chapter 170, N.D. Session Laws 1939, provides that the proceeds of the 1 cent gas tax shall be covered into the state highway fund. Public moneys are required to be deposited with the state treasurer by § 186 of the Constitution as amended by the initiated measure adopted June 28, 1938. It is the duty of the state auditor to draw warrants on the state treasurer for disbursements authorized by law where there are sufficient funds on hand for payment thereof.
Section 4 of chapter 139, N.D. Session Laws 1929, prescribes the procedure incidental to the payment of estimates on highway contracts. Under this procedure it is the duty of the state auditor to draw warrants upon the state treasurer for the payment of intermediate estimate vouchers when approved for payment by the proper officer of the state highway department. A number of such vouchers representing a total of $ 266,500.86 have been presented to the state auditor who refuses to draw warrants in payment thereof. The state highway department seeks a writ of mandamus directing the auditor to issue the warrants. The state auditor, as a ground for refusal, asserts that the one cent gas tax law is unconstitutional. The specific sections of the Constitution which the state auditor claims are violated will be discussed later. The parties not only raise no question as to the right of the state auditor to challenge the constitutionality of the law in question, but they argue that she has such right. Nevertheless, we deem this question of such importance that it should be given consideration at this point.
There is no question as to the general rule that a subordinate ministerial officer to whom no injury can result and to whom no violation of duty can be imputed by reason of compliance with the statute may not question the constitutionality of the statute imposing such duty. 11 Am. Jur. 762; Constitutional Law, § 117; 16 C.J.S. 173; annotation in 30 A.L.R. 378. This rule, like most others, has its exceptions. It does not apply to all officers concerning all ministerial duties under all circumstances. The state auditor is a constitutional executive officer whose duty in this instance deals directly with the expenditure of public funds. She has been advised by the attorney general, who is her legal advisor under the laws of this state, that the one cent gas tax law is unconstitutional. Furthermore, the matter is one of great public interest. It affects those who use state highways and those who purchase motor vehicle fuel as well as one of the major departments of the state government.
At the outset we consider the fact that the law which the state auditor now challenges is the same law under which she collected the tax constituting the money now in question. It has been suggested that since the one cent gas tax law imposes the duty upon the state auditor of collecting the tax as well as of drawing warrants in connection with the disbursements of the proceeds, that she should have challenged the constitutionality by refusing to collect rather than by refusing to disburse after the collections were made.
In collecting the tax the auditor acts in the capacity of a tax collector, while she acts as a disbursing officer in the drawing of warrants against the funds collected. Each taxpayer has an immediate and direct interest in the matter of the tax collection and the right to question the constitutionality of the law under which collection is made may well be left to those thus directly interested. Public policy requires the tax collector to proceed with the collection of public revenue without undue delay. On the other hand public policy also requires the safeguarding of public funds by those charged with their care or disbursement. It would, therefore, seem that the fact that the state auditor is also the tax collector does not bar her from questioning the constitutionality of an act under which such disbursement is sought, even if the disbursement is provided for by the same statute under which collection is made.
Passing now to the right of the state auditor to raise a question of the constitutionality of an act and under the terms of which it is her ministerial duty to make disbursement, we find the weight of authority to be in favor of such right. Upon this point there seems to be no distinction between an officer who is the immediate custodian of the funds, such as the...
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