Langer v. State

• Decision Date: 20 February 1939
• Docket Number: No. 6587.,6587.
• Citation: 284 N.W. 238,69 N.D. 129
• Parties: LANGER, Governor, et al. v. STATE et al.
• Court: North Dakota Supreme Court

69 N.D. 129

284 N.W. 238

LANGER, Governor, et al.

v.STATE et al.

No. 6587.

Supreme Court of North Dakota.

Jan. 28, 1939.

Rehearing Denied Feb. 20, 1939.

On Petition for Rehearing.

Syllabus by the Court.

1. Under the law creating a State Budget Board and providing for the preparation of a State budget (Supp.1925, Sections 710a1-710a8, as amended by Laws 1929, c. 93), it is the duty of the head of each department of the “state government, and of each officer, board or commission, in charge of any educational, charitable, penal or other institution or undertaking, supported in whole or in part by appropriations from the state treasury” to file with the State Auditor a report, upon a blank furnished by the State Auditor, “with an itemized statement of the amount of money which such head of state department, officer, board or commission considers necessary for the proper maintenance, extension or improvement of the department, institution or undertaking in his or their charge, during the two fiscal years next ensuing.”

2. It is the duty of the head of each State department, officer, board or commission in charge of any institution or undertaking which will require an appropriation from the State Treasury to carry on its activities during the fiscal biennium commencing July 1st, 1939, to file such report with the State Auditor, even though the activities of the department, institution, or undertaking at this time are being carried on with the expenditure of funds resulting from the collection of fees or other exactions, and without specific appropriation from the State Treasury.

3. The Declaratory Judgments Act is intended to provide a method whereby parties to a justiciable controversy may have the same determined by a court in advance of any invasion of rights. But an action or proceeding for a declaratory judgment must involve an actual controversy of a justiciable character, and between parties having adverse interests.

4. No action or proceeding lies under the Declaratory Judgments Act to obtain a decision which is merely advisory, or which merely determines abstract questions.

5. In order that declaratory relief may be granted under the Uniform Declaratory Judgments Act (Supp.1925, Sections 7712a1-7712a16), there must exist a controversy in which a claim of legal right is asserted against one who has an interest in contesting it, the controversy must be between persons whose interests are adverse, the party seeking the declaratory relief must have an interest which he has a legal right to vindicate, and the issue in the controversy must be ripe for judicial determination.

6. The duty imposed by the State Budget Law (Supp.1925, Sections 710a1-710a8, as amended by Laws 1929, c. 93) upon heads of State departments, officers, boards or commissions to file a report with the State Auditor is an official duty, the performance of which may be enforced by appropriate judicial action.

7. The reports required to be filed by heads of State departments, officers, boards and commissions, with the State Auditor (Secretary of the State Budget Board) are for the use of the members of the State Budget Board, and in the eyes of the law, such reports are necessary to enable the members of the Budget Board to perform their duties, and they have a direct interest in having such reports filed.

8. As a general rule, a State Board may sue to compel performance of official duties, when the performance of such duties is necessary to enable it to perform its own duties in the manner provided by law.

9. The State Budget Board may bring an action for declaratory relief against heads of State departments, officers, boards and commissions who refuse to file reports with the State Auditor, as required by the State Budget Law, to obtain determination of a controversy between the State Budget Board and such heads of State departments, officers, boards and commissions as to whether it is their duty under the State Budget Law to file such reports.

10. The object of the law establishing the State Budget Board is to enable such Board to assemble and present to, and for the benefit of, the Legislative Assembly pertinent facts regarding State departments, institutions, and undertakings, to the end that the lawmakers may have as complete and impartial information as the members of the Budget Board may be able to obtain as to the expenditures that probably will be required to be authorized by the Legislative Assembly to carry on the activities of the State; and, also, so that the lawmakers may have a reasonably accurate estimate of the probable revenues of the State out of which the expenditures must be paid.

11. The State Budget Board Law prescribes no forms, and the members of the Board are vested with wide power as to the detail and scope of the information to be listed and supplied by the various State departments, officers, and institutions. The Board is entitled to any information which it requests, which will enable it to report to the Legislative Assembly the facts which the law requires it to report.

12. The powers conferred upon the Supreme Court by the Constitution of North Dakota are exclusively judicial. The giving of advisory opinions is not a judicial function.

13. Under the Constitution of North Dakota, the Supreme Court is not permitted to render advisory opinions.

14. For reasons stated in the opinion, it is held that the Commissioner of Insurance is required to file with the State Auditor the statement prescribed by the State Budget Board Law for the State Hail Insurance Fund, the State Bonding Fund, and the State Fire and Tornado Fund; that the Workmen's Compensation Bureau is required to file such statement both as regards administrative expenses in operation of the Workmen's Compensation Fund, and the Employment Service Account, maintained as a part of the Unemployment Compensation Fund; that the State Highway Commissioner and the Public Welfare Board of North Dakota are required to file such statements.

15. For reasons stated in the opinion, it is held that this action presents no justiciable controversy between adverse parties as regards the defendants,-the Bank of North Dakota, the North Dakota Mill and Elevator Association, the Secretary of State, the Board of University and School Lands, the Board of Trustees for the Teachers' Insurance and Retirement Fund, the State Game and Fish Commissioner, the State Treasurer, the State Tax Commissioner, the State Seed Commissioner and the members of the State Board of Administration, and that as regards these defendants, in effect, merely an advisory opinion is sought, which the Supreme Court is not authorized to render.

Appeal from District Court, Burleigh County; McFarland, Judge.

Action for a declaratory judgment by William Langer, Governor, and others, as members of and constituting the State Budget Board, against the State of North Dakota, doing business as the Bank of North Dakota, and others, to determine primarily whether the defendants are required to furnish a statement of an estimate of the necessary expenditures under the State Budget Law. From the judgment, the plaintiffs and certain of the defendants appeal.

Judgment modified.A. C. Strutz, Atty. Gen., and C. F. Kelsch, Asst. Atty. Gen., for plaintiffs-appellants.

Robert H. Bosard, of Minot, and Robert Birdzell, of Bismarck, for appellant Bank of North Dakota.

A. M. Kuhfeld, Asst. Atty. Gen., and J. K. Murray, of Bismarck, for appellant Workmen's Compensation Bureau.

Robert H. Bosard, of Minot, for appellants State Insurance Commissioner and State Treasurer.

John E. Williams, of Bismarck, for appellant Public Welfare Board of North Dakota.

Milton K. Higgins, of Bismarck, for appellant State Board of Railroad Commissioners.

S. E. Ellsworth, of Bismarck, for respondent State Highway Commissioner.

Horace C. Young, of Fargo, amicus curiae.

CHRISTIANSON, Judge.

Plaintiffs brought this action for a declaratory judgment, pursuant to Chapter 237, Laws 1923, Supp.1925, Section 7712a1-7712a16. The plaintiffs are members of, and constitute, the State Budget Board, and the defendants are officers, members of boards and commissions, and industrial undertakings carried on by the State. The primary question in controversy is whether the defendants are required to furnish a statement of an estimate of the necessary expenditure under the provisions of Ch. 61, Laws 1915, as amended by Ch. 93, Laws 1929, 1925 Supp., Section 710a1 et seq.

[1] The law last cited was entitled (in part): “An Act Providing for the Preparation of the State Budget; Creating a State Budget Board, Prescribing its Powersand Duties.” Laws 1915, Ch. 61. It established a State Budget Board, consisting of the Governor, the Chairmen of the Appropriations Committees of the Senate and the House of Representatives, the State Auditor, and the Attorney General. The Governor is made Chairman, and the State Auditor is made Secretary of the Board. The law provides that the State Auditor shall “send to the head of each department of this state government, and to each officer, board or commission, in charge of any educational, charitable, penal or other institution or undertaking, supported wholly or in part by appropriations from the state treasury, a suitable blank form to be filled out by such head of state department, officer, board or commission, with an itemized statement of the amount of money which such head of state department, officer, board or commission considers necessary for the proper maintenance, extension or improvement of the department, institution, or undertaking in his or their charge, during the two fiscal years next ensuing.” Section 710a3. And it is made the duty of such head of State department, officer, board or commission to “return said blanks, properly filled out, on or before the first day of October of each year next preceding the session of the legislative assembly, to the state auditor, together with such data and statements as may be...