O'Laughlin v. Carlson

• Court: North Dakota Supreme Court
• Writing for the Court: CHRISTIANSON, J.
• Citation: O'Laughlin v. Carlson, 30 N.D. 213, 152 N.W. 675 (N.D. 1915)
• Decision Date: 16 April 1915

152 N.W. 675

30 N.D. 213

JOHN O'LAUGHLIN v. PETER CARLSON, County Auditor of Renville County, North Dakota

Supreme Court of North Dakota

April 16, 1915

From a judgment of the District Court of Renville County, Leighton J., defendant appeals.

Reversed.

Judgment reversed, and judgment entered in favor of the defendant for a dismissal of the action, with costs.

H. J Linde, Attorney General; John Swenson, State's Attorney Geo. I. Rodsater, Assistant State's Attorney, for appellant.

No appearance for respondent.

OPINION

CHRISTIANSON, J.

This is an appeal from a judgment of the district court of Renville county, in a mandamus proceeding commanding the defendant as county auditor, to receive and file the petition of the plaintiff, John O'Laughlin, for nomination to the office of county commissioner of the second commissioner district of said county, and place and cause his name to be printed on the official ballot to be used at the general election held on November 3, 1914. The material facts are undisputed and as follows: That the county of Renville came into existence in the year 1910, being organized out of territory theretofore forming a part of Ward county; that after the creation of the county, the governor appointed three persons to act as county commissioners, who afterwards qualified and assumed the duties of their office, and thereafter divided the county into three county commissioner districts; that the commissioners so appointed held their offices until January, 1911; that at the general election held in November, 1910, a county commissioner was duly elected from each of the three county commissioner districts in said county; that one R. D. Johnson was elected county commissioner from the second county commissioner district, and that on the 14th day of July, 1913, the county commissioners of Renville county met, and, in accordance with the provisions of chapter 123 of the Session Laws of 1913, drew lots to determine their order of succession, and that upon the drawing of such lots, the said R. D. Johnson drew a term of four years to commence on the 1st day of January, 1913.

(1) The sole question presented by this appeal is whether or not chapter 123 of the Session Laws of 1913 (§ 3264, Complied Laws), is constitutional. The contention of the relator is that this law is unconstitutional, and that for that reason the term of office of said Johnson as county commissioner of the second commissioner district would be for the period of four years only, from and after the first Monday in January, 1915. The defendant, on the other hand, contends that this law is constitutional, and hence that the term of office of Johnson as commissioner does not expire until January 1, 1917, and hence necessarily no commissioner could be elected for this district at the election to be held on November 3, 1914. As the election has been held, the question of whether or not the judgment appealed from ought to be affirmed or reversed is to some extent moot, but as that decision directly involved the duration of the term of office of R. D. Johnson, the then incumbent, and also involved the constitutionality of the act in question, it is obvious that the real question presented is of great public interest, and still remains unsettled, and under such circumstances this court will determine the real questions at issue. State ex rel. Dakota Trust Co. v. Stutsman, 24 N.D. 68, 139 N.W. 83, Ann. Cas. 1914D, 776. See also Re Madden, 148 N.Y. 136, 42 N.E. 534.

(2) Section 172 of the Constitution provides for a county government by a board of county commissioners, and reads as follows: "Until the system of county government by the chairmen of the several township boards is adopted by any county the fiscal affairs of said county shall be transacted by a board of county commissioners. Said board shall consist of not less than three and not more than five members, whose term of office shall be prescribed by law. Said board shall hold session for the transaction of county business, as shall be provided by law." It will be observed that this section expressly provides that the terms of office of the county commissioners shall be prescribed by law.

The first statute in this state relative to the terms of county commissioners appeared as § 575 of the Compiled Laws of Dakota of 1887, and reads as follows: "The commissioners shall hold their office for the term of three years, except as provided in the statute for the organization of counties, and one shall retire and one be chosen annually, and in counties now organized the order of their election and succession shall remain as now established, and commissioner districts in such counties shall continue as now constituted until changed as provided by law." This territorial statute became part of the laws of this state under the provisions of § 2 of the schedule of the Constitution, and was subsequently adopted as § 1896 of the Revised Codes of 1895.

Section 124 of the Constitution provided that general elections of the state should be biennial and held on the first Tuesday after the first Monday in November. The first election to be held on the first Tuesday after the first Monday in November, 1890. It will be observed that the statute relative to the terms of county commissioners still provided that their terms should be for three years, and that one should be chosen and one retired annually, which necessarily resulted in a vacancy occurring in each odd-numbered year, which had to be filled by appointment. This condition remained until the law was amended by the legislature in 1901 so as to extend the term of the office of county commissioners to four years. And this act (chapter 52, Session Laws of 1901) provided that the vacancies which would occur in the board of county commissioners in the years 1901 and 1903 should be filled in the manner provided by law for the filling of other vacancies in such board. This section was again amended by the legislature in 1903, so as to provided for a method of determining the order of succession of the county commissioners theretofore elected under the provisions of special laws, and was finally embodied as § 2390 of the Revised Codes of 1905, Comp. Laws 1913, § 3264, and reads as follows: "The commissioners shall hold their office for the term of four years, except as provided by law for the organization of counties, and in counties now organized the order of their election and succession shall be as herein provided, and commissioner districts in such county shall continue as now constituted until changed as provided by law; provided, that in all counties in this state, wherein heretofore commissioners have been elected under the provisions of any special law, that at the next regular meeting of the board of county commissioners, immediately after the taking effect of this article, the county commissioners in such counties shall by lot settle and determine upon the order of their succession, three commissioners to hold their office for four years and two for two years from the first Monday in January, 1903." A reading of the section just quoted discloses that it applies only to counties having five commissioners.

Prior to 1913, several new counties were organized in North Dakota and at the 1913 session of the legislature, § 2390 was amended to read as follows: "The commissioners shall hold their office for the term of four years, except as provided by law for the organization of counties, and in counties now organized, the order of their election and succession shall be as herein provided, and commissioner districts in such counties shall continue as now constituted until changed as provided by law. Provided, that at the general election next after the organization of a county, either from unorganized territory or from territory segregated by division from another county, one county commissioner shall be elected for a term of two years and two commissioners for a term of four years, and thereafter as provided by law, the order of succession to be determined by lot. Provided, further, that in all counties in this state wherein heretofore commissioners have been elected after the organization of a new county, either from unorganized territory or upon division or segregation from another county, and where all the commissioners now serving were elected for the same term, the county commissioners shall, at the regular meeting of the board of county commissioners next after the taking effect of this act, . . . by lot determine the order of their succession; three commissioners to hold their office for four years and two for two years from the first Monday in January, 1913, in counties having five commissioner districts; two commissioners to hold their office for four years and one for two...