State ex rel. Birdzell v. Jorgenson

• Decision Date: 17 June 1913
• Parties: STATE ex rel. BIRDZELL et al., Tax Commission, v. JORGENSON, State Auditor.
• Court: North Dakota Supreme Court

25 N.D. 539

142 N.W. 450

STATE ex rel.

BIRDZELL et al., Tax Commission,

v.JORGENSON, State Auditor.

Supreme Court of North Dakota.

June 17, 1913.

Syllabus by the Court.

An application to the Supreme Court for a writ of mandamus directed to the state auditor to require him to credit to the account of the state board of tax commissioners under authority of chapter 303 of the Laws of 1911, and to issue warrants upon the state treasurer to pay the salaries and meet the expenses of said commission, involves the prerogatives, rights, and franchises of the state government and invokes the original jurisdiction of the Supreme Court.

The members of the state board of tax commissioners created by chapter 303 of the Laws of 1911, and who by such act have been vested with a general supervisory power over the various taxing agencies and boards of review of the state and with the power to themselves assess in certain instances, are held to be state officers.

No express form of words is necessary to constitute a valid appropriation.

Section 5 of chapter 303 of the Laws of 1911, which provides that “each of said commissioners shall receive an annual salary of three thousand dollars, payable in the same manner that the salaries of other state officers are paid,” is held to constitute a valid annual appropriation of $9,000.

Section 6 of chapter 303 of the Laws of 1911, which provides that “the commissioners first appointed under this act, after having duly qualified, shall without delay meet at the capitol at Bismarck and shall thereupon organize by electing a secretary, who shall receive a salary of not more than $2,400 per annum,” is held to create a valid annual appropriation of $2,400.

Section 7 of chapter 303 of the Laws of 1911, which provides that “the commission may, in addition to secretary provided for in section 6 of this act, also employ such other persons as clerks, stenographers and experts as may be necessary for the performance of the duties required of the commission. The commission shall fix the compensation of such secretary, clerks, stenographers and experts employed by them, but the total amount expended for that purpose shall not exceed six thousand dollars per annum,” is held to constitute a valid annual appropriation of $6,000.

Section 8 of chapter 303 of the Laws of 1911, which provides that “the commission shall keep its office at the capitol, and shall be provided with suitable rooms, necessary office furniture, supplies, stationery, books, periodicals and maps; and all necessary expenses shall be audited and paid as other state expenses are audited and paid. The commissioners, secretary and clerks and such experts and assistants as may be employed by the commission shall be entitled to receive from the state their actual necessary expenses while traveling on business of the commission; such expenditure to be sworn to by the party who incurred the expense, and approved by the chairman of the commission, or a majority of the members of such commission, but the total amount to be expended for such office supplies and traveling expenses shall not exceed the sum of $4,500,” is held to constitute a valid annual appropriation to the amount of $4,500.

Section 14 of chapter 303 of the Laws of 1911, which provides that “there is hereby annually appropriated out of any moneys in the state treasury, not otherwise appropriated, the sum of $3,000, or as much thereof as may be needed for the purpose of carrying out the provisions of this act,” is held to constitute a valid annual appropriation of $3,000.

The meaning of the word “until,” except when actually defined by the statute, must depend upon the intention of those using it as manifested by the context and considered with reference to the subject to which it relates. [Citing 8 Words and Phrases Judicially Defined, pp. 7217, 7218.]

The word “until” as found in section 3 of chapter 303 of the Laws of 1911, which provides that “if such appointment be made when the Legislature is not in regular session, the appointee shall hold his office until the third Monday in January in the next biennial session of the Legislature, when if such appointment is not confirmed by the Senate, the office shall become vacant,” is held to include the said third Monday in January. [Citing 8 Words and Phrases Judicially Defined, pp. 7217, 7218.]

The word “is” often has, and in this case is held to have, a future meaning. It is not synonymous with “shall have been.”

The clause “when if such appointment is not confirmed,” refers to a future and not to a past transaction.

That portion of section 3 of chapter 303 of the Laws of 1911 which provides that “in case of vacancy, it shall be filled by appointment by the Governor for the unexpired portion of the term in which such vacancy shall occur, subject to confirmation by the Senate. If such appointment be made when the Legislature is not in regular session, the appointee shall hold his office until the third Monday in January in the next biennial session of the Legislature, when if such appointment is not confirmed by the Senate, the office shall become vacant,” is held to relate to appointments which are made or have been made to fill vacancies in the tax commission occurring after the appointment of the first three commissioners provided for in section 2 of the act, and not to relate to the first three commissioners appointed on July 1, 1912, and under the authority of said act.

Sections 2, 3, and 15 of chapter 303 of the Session Laws of 1911, construed and held that the first three commissioners provided for by said act and under authority of section 2 thereof could legally be confirmed at any time during the legislative session of 1913, and were so legally confirmed.

Original proceedings in mandamus by the State on relation of Luther E. Birdzell and others, as members of the North Dakota Tax Commission, against Carl O. Jorgenson, as State Auditor. Writ allowed.

This is an application to the Supreme Court for a writ of mandamus, and an appeal to its original jurisdiction. The petition has affixed to it the indorsement of the Attorney General, and is as follows:

“Frank E. Packard, being first duly sworn, says: That he is a duly appointed, qualified and acting member of the tax commission of the state of North Dakota, and makes this affidavit in behalf of himself, Luther E. Birdzell and George E. Wallace, who are also members of said tax commission. That during the Twelfth session of the Legislative Assembly in and for the state of North Dakota, an act was passed and became a law creating a nonpartisan tax commission in and for the state of North Dakota, the same being chapter 303 of the Session Laws of 1911. That under and by virtue of the provisions of said law, the petitioners were each, on the 2d day of July, 1912, duly appointed to the office of tax commissioner; said Luther E. Birdzell being appointed for a term beginning July 2, 1912, and ending the first Monday in May, 1915, said Frank E. Packard being appointed for a term beginning July 2, 1912, and ending the first Monday in May, 1917, and the said George E. Wallace being appointed for a term beginning July 2, 1912, and ending the first Monday in May, 1919. That each of said persons did thereafter, in the manner prescribed by law, duly qualify for such office, and that each of said persons still holds such office and is regularly performing the duties thereof. That during the legislative session of 1913, the appointments of each and all of said persons was confirmed by the Senate, as required by law. That Carl O. Jorgenson, the defendant herein, is the duly qualified and acting state auditor of the state of North Dakota. That the petitioners herein, under and by virtue of section 5 of chapter 303 of the Session Laws of 1911, are each entitled to the salary therein provided, as members of said commission, and that the salary due to each of the petitioners for the month of April, 1913, is $250, and that the same was due and payable on the 1st day of May, 1913, under and by virtue of said section 5 of chapter 303 of the Session Laws of 1911, and that no part of said salary has been paid, nor has any warrant been issued authorizing or directing the payment of the same or any part thereof. That appropriation is made by law for the payment of said salaries by virtue of section 391 of the Revised Codes of North Dakota for 1905, and section 5 of chapter 303 of the Session Laws of 1911, and that there is money not otherwise appropriated available for the payment of said salaries. That it is the duty of the defendant herein as state auditor to draw warrants for the payment of the salaries due to the said petitioners, as hereinabove set forth. That each of said petitioners did demand of the defendant herein on the 1st day of May, 1913, that he issue a warrant for the payment of his salary, but that the defendant did refuse to issue said warrants in violation of his legal duty in the premises. That said defendant still refuses to issue warrants to the petitioners herein, authorizing and directing the payment of said salaries. That from time to time, as warrants have been issued for the salaries of the said commissioners, the amounts of said warrants have been charged against the specific annual appropriation contained in section 14 of chapter 303 of the Session Laws of 1911, whereas the same are proper charges against the appropriation for the salaries of state officers, provided in section 391 of the Revised Codes of 1905. That under and by virtue of chapter 7 of the Session Laws of 1909, there is appropriated out of the general fund, $37,500 annually for the purpose of capitol maintenance, such sum being placed at the disposal of the board of trustees of public property for the purpose of providing all necessary furniture, fuel, lights, stationery, postage, express, freight, drayage and all other supplies for the state officers and executive mansion and the public...