State ex rel. Birdzell v. Jorgenson

• Citation: 142 N.W. 450,25 N.D. 539
• Decision Date: 17 June 1913
• Court: North Dakota Supreme Court

142 N.W. 450

25 N.D. 539

STATE OF NORTH DAKOTA, EX REL. LUTHER E. BIRDZELL, Frank E. Packard, and George E. Wallace, Members of the North Dakota Tax Commission v. CARL O. JORGENSON, as State Auditor

Supreme Court of North Dakota

June 17, 1913

Mandamus by the State on relation of Luther E. Birdzell Frank E. Packard, and Geo. E. Wallace, members of the North Dakota tax commission, against Carl O. Jorgenson, as State Auditor.

Writ allowed.

Peremptory writ issued.

Luther E. Birdzell and George E. Wallace, for petitioners.

The questions here at issue involve the prerogatives, rights, and franchises of state government, and the supreme court of this state has original jurisdiction. Const. §§ 86, 87; Rev. Codes 1905, §§ 6751-7822; State ex rel Goodwin v. Nelson County, 1 N.D. 101, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N.W. 33; State ex rel. Moore v. Archibald, 5 N.D. 359, 66 N.W. 234; State ex rel. Wineman v. Dahl, 6 N.D. 81, 34 L.R.A. 97, 68 N.W. 418; State ex rel. Plain v. Falley, 8 N.D. 90, 76 N.W. 996; State ex rel. Wolfe v. Falley, 9 N.D. 450, 83 N.W. 860; State ex rel. Fosser v. Lavik, 9 N.D. 461, 83 N.W. 914; Anderson v. Gordon, 9 N.D. 480, 52 L.R.A. 134, 83 N.W. 993; State ex rel. Granwold v. Porter, 11 N.D. 309, 91 N.W. 944; State ex rel. Buttz v. Liudahl, 11 N.D. 320, 91 N.W. 950; State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955; State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 388; Duluth Elevator Co. v. White, 11 N.D. 534, 90 N.W. 14; State ex rel. Mitchell v. Larson, 13 N.D. 420, 101 N.W. 315; State ex rel. Rusk v. Budge, 14 N.D. 532, 105 N.W. 724; State ex rel. Frich v. Stark County, 14 N.D. 368, 103 N.W. 913; State ex rel. Madderson v. Nohle, 16 N.D. 168, 125 Am. St. Rep. 628, 112 N.W. 141; State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705; State ex rel. Steel v. Fabrick, 17 N.D. 532, 117 N.W. 860; State ex rel. Cooper v. Blaisdell, 17 N.D. 575, 118 N.W. 225; State ex rel. McCue v. Blaisdell, 18 N.D. 55, 24 L.R.A. (N.S.) 465, 138 Am. St. Rep. 741, 118 N.W. 141; 18 N.D. 31, 119 N.W. 360; State ex rel. Miller v. Norton, 20 N.D. 180, 127 N.W. 717; State ex rel. Williams v. Meyer, 20 N.D. 628, 127 N.W. 834; State ex rel. Miller v. Miller, 21 N.D. 324, 131 N.W. 282; State ex rel. Watkins v. Norton, 21 N.D. 473, 131 N.W. 257; State ex rel. Miller v. Taylor, 22 N.D. 362, 133 N.W. 1046.

The petitioners are state officers, and their duties are therefore of a public nature. 36 Cyc. 852; Mechem, Pub. Off. chap. 1; Throop, Pub. Off. §§ 3, 4. That the petitioners are state officers see: Mechem, Pub. Off. § 35; Throop, Pub. Off. § 10; 36 Cyc. 852; State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 So. 721, 63 Am. St. Rep. 174, and note following; Re Advisory Opinion to Governor, 49 Fla. 269, 39 So. 63; People ex rel. Foley v. Montez, 48 Colo. 436, 110 P. 639; Blue v. Tetrick, 69 W.Va. 742, 72 S.E. 1033; Blue v. Smith, 69 W.Va. 761, 72 S.E. 1038.

That specific appropriations are made by law for the purpose of maintaining the tax commission. State ex rel. McDonald v. Holmes, 19 N.D. 286, 123 N.W. 884; Thomas v. Owens, 4 Md. 226; Garr v. State, 127 Ind. 204, 11 L.R.A. 370, 22 Am. St. Rep. 625, 26 N.E. 778; Campbell v. State Soldiers' & S. Monument Comrs. 115 Ind. 591, 18 N.E. 33; Henderson v. State Soldiers' & S. Monument Comrs. 13 L.R.A. 169, and note, 129 Ind. 92, 28 N.E. 127; Ristine v. State, 20 Ind. 338; Reynolds v. Taylor, 43 Ala. 420; People ex rel. Hegwer v. Goodykoontz, 22 Colo. 507, 45 P. 414; Proll v. Dunn, 80 Cal. 220, 22 P. 143; Humbert v. Dunn, 84 Cal. 57, 24 P. 111 (cited with approval) in the late California case of Harrison v. Horton, 5 Cal.App. 415, 90 P. 716; State ex rel. Buck v. Hickman, 10 Mont. 497, 26 P. 386; State ex rel. Noonan v. King, 108 Tenn. 271, 67 S.W. 812; Kendall v. Raybauld, 13 Utah 226, 44 P. 1034; note to State ex rel. Davis v. Eggers, 16 L.R.A.(N.S.) 630; State ex rel. Brainerd v. Grimes, 7 Wash. 191, 34 P. 833; State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 P. 125; State ex rel. Holcombe v. Burdick, 4 Wyo. 290, 33 P. 131; 2 Lewis's Sutherland Stat. Constr. §§ 368-370, 594.

"No money shall be paid out of the state treasury, except upon appropriation by law." Const. § 186; Thomas v. Owens, 4 Md. 189; Ristine v. State, 20 Ind. 328; Carr v. State, 127 Ind. 204, 11 L.R.A. 370, 22 Am. St. Rep. 625, 26 N.E. 778; Harrison v. Horton, 5 Cal.App. 415, 90 P. 716; State ex rel. Noonan v. King, 108 Tenn. 271, 67 S.W. 812; State ex rel. Brainerd v. Grimes, 7 Wash. 191, 34 P. 833.

Where the nature and amount of services rendered the state are definitely fixed, and the compensation therefor limited by law, the duty of auditing and allowing claims for such services becomes a mere ministerial act. Shattuck v. Kincaid, 31 Ore. 379, 49 P. 758; State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 P. 125.

Section 7 of chapter 303 of the Session Laws of 1911 contains every element essential to make it an appropriation. The same is true of the other sections of our laws, to which attention has been called. Henderson v. State Soldiers' & S. Monument Comrs. 129 Ind. 92, 13 L.R.A. 169, 28 N.E. 127; State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 P. 125.

Barnett & Richardson and Palda, Aaker, & Greene, for defendant.

The important point in the determination and construction of acts and laws is to ascertain the legislative intent.

The language of the title of a bill or act is not controlling upon the question of construction, but it is important as throwing light upon the question of intent. Reference may also be had to the preamble as an aid in construing a statute. Hahn v. Salmon, 10 Sawy. 183, 20 F. 801; Nazro v. Merchants' Mut. Ins. Co. 14 Wis. 295; People ex rel. McCullough v. Pacheco, 27 Cal. 175; Holbrook v. Holbrook, 18 Pick. 248; Church of the Holy Trinity v. United States, 143 U.S. 457, 36 L.Ed. 226, 12 S.Ct. 511; Hines v. Missouri P. R. Co. 86 Mo. 629; Coosaw Min. Co. v. South Carolina, 144 U.S. 550, 36 L.Ed. 537, 12 S.Ct. 689; Cohen v. Barrett, 5 Cal. 195; People ex rel. Flynn v. Abbott, 16 Cal. 358.

By the act under consideration, the legislature intended to make but one single appropriation for the purposes mentioned, and this to the exclusion of any and all others. Laws 1911, chapter 303; S.D. Sess. Laws (1913) 221.

The intention of the legislature of 1911 was that the expenditures to be made under chapter 303 were limited to $ 3,000,--the appropriation carried by § 14. That the legislature of 1913 increased such appropriation, by eliminating § 14. The act of the 1913 legislature having been vetoed, the 1911 law remained in force, and no greater appropriation than $ 3,000 existed. Texas & P. R. Co. v. Interstate Commerce Commission, 162 U.S. 197, 40 L.Ed. 940, 5 Inters. Com. Rep. 405, 16 S.Ct. 666; Ex parte Farley, 40 F. 66; Edger v. Randolph County, 70 Ind. 331; Stout v. Grant County, 107 Ind. 343, 8 N.E. 222; Harrington v. Smith, 28 Wis. 43; Hill v. Mitchell, 5 Ark. 608.

It was clearly the intention of the legislature of 1911, that the future life of the tax commission, and the provision for its maintenance, should be left to the legislature of 1913. Atty. Gen. v. Bank of Cape Fear, 40 N.C. (5 Ired. Eq.) 71; Westbrook v. Miller, 56 Mich. 148, 22 N.W. 256; Scanlan v. Childs, 33 Wis. 663; Re Street Opening, 12 Misc. 526, 33 N.Y.S. 594; Leddy v. Cornell, 52 Colo. 189, 38 L.R.A. (N.S.) 918, 120 P. 153, Ann. Cas. 1913C, 1304.

The use of the words "until" and "when," as found in the act, limits the right of confirmation of these appointments, to a time before the third Monday in January, 1913. If not so confirmed, the offices were vacant on that day.

Words should be given their ordinary meaning. State ex rel. Cosgrove v. Perkins, 139 Mo. 106, 40 S.W. 650; Maginn v. Lancaster, 100 Mo.App. 116, 73 S.W. 368; Croco v. Hille, 66 Kan. 512, 72 P. 208; People ex rel. Cornell S. B. Co. v. Hornbeck, 30 Misc. 212, 61 N.Y.S. 978; Ryan v. State Bank, 10 Neb. 524, 7 N.W. 276; Webster v. French, 12 Ill. 302; People v. Walker, 17 N.Y. 502; Willey v. Laraway, 64 Vt. 566, 25 A. 435; Bemis v. Leonard, 118 Mass. 502, 19 Am. St. Rep. 470; Hartman v. Ringgenberg, 119 Ind. 72, 21 N.E. 464; Clarke v. New York, 111 N.Y. 621, 19 N.E. 436.

OPINION

Statement

BRUCE J.

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 1st Monday in May, 1915; said Frank E. Packard being appointed for a term beginning July 2d, 1912, and ending the 1st Monday in May, 1917; and the said George E. Wallace being appointed for a term beginning July 2d, 1912, and ending the 1st 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...