State ex rel Edgerly v. Currie
| Decision Date | 31 May 1893 |
| Citation | 55 N.W. 858,3 N.D. 310 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Burleigh County; Winchester, J.
Mandamus proceeding. Defendant appeals from a final order of the District Court of Burleigh County, (W. H. Winchester, J.,) which order directs the defendant to issue warrants for relator's official salary, as secretary of the commissioners of railroads, at the rate of $ 1,500 per annum.
Reversed.
W. H Standish, Atty. Gen., for appellant.
M. J Edgerly, for respondent.
The relator was appointed secretary of the commissioners of railroads on February 4th, 1891, and served in that capacity from said date until the end of January, 1892. The relator claims that the salary allowed by law to such secretary is $ 1,500 per annum, and has, upon that assumption, made out, in due form, his monthly accounts for salary during said period, and has from time to time presented the same to the respondent, as state auditor, and demanded warrants upon the state treasurer for such amounts. The auditor has refused, and still refuses to issue warrants to the relator upon the basis of a salary of $ 1,500. The court below directed the defendant to issue the warrants as demanded. The facts are conceded, and the sole question presented for the determination of the court is whether relator's salary is, or is not, $ 1,500 a year. If it is that amount, the order appealed from must be affirmed; otherwise, it must be reversed. The solution of the question must turn upon the construction to be given to certain constitutional provisions and statutes which bear upon the subject matter.
Chapter 110 of the Laws of 1889 embraces an act of the legislature of the Territory of Dakota, which act amends an act of 1885, entitled "An act to provide for the establishment of a board of railroad commissioners, defining their duties," etc. Both acts authorized the governor of the Territory, by and with the advice and consent of the council, to appoint three persons biennially, to be "and constitute a board of railroad commissioners." Section 6 of the act of 1885 was re-enacted without change, and constituted § 27, Ch. 110, Laws 1889. Said section is as follows: This section is explicit, and under it the territorial board of railroad commissioners "had authority to appoint a secretary," and when appointed the secretary's salary was $ 1,500 a year. This section was in force when the state constitution went into effect, in the year 1889; and it becomes necessary to inquire whether it was in force during the time when the relator was in office, because it is not claimed that any statute has been passed by the state legislature, in terms, creating the office of secretary of the "commissioners of railroads." The relator's claim is that such office has been recognized by state legislation, and that no state enactment is in conflict with the provisions of § 27, relating to the appointment and salary of a secretary, and hence that the same are in force. If the position of secretary of the commissioners of railroads is, under § 27, a distinct state office, and one which exists separately and apart from the position of a clerk of the commissioners of railroads, it would be the duty of the state auditor, under the annual appropriation act, approved February 27th, 1891, (Ch. 10, Laws 1891,) to issue the warrants demanded by the relator as the incumbent of such office. That the relator was appointed to the office of secretary by the commissioners of railroads is not questioned.
Turning to the state law we find that § 82 of the constitution provides Section 83 provides: "The powers and duties of the commissioners of railroads shall be as prescribed by law." Section 84 fixes the annual salary of such commissioners at $ 2,000. The state constitution contains no further provisions relating to commissioners of railroads, and, as has been seen, it confers upon them no powers or duties, but, on the contrary, declares that their powers and duties "shall be as prescribed by law." The legislature of the state, at its first session, enacted a great number and variety of statutes defining the powers and prescribing the duties of the "commissioners of railroads;" but, so far as we can see, no statute of the state has ever created, in terms, the office of secretary of the commissioners of railroads, or authorized such commissioners, or any one else, to appoint an officer of that name. See Ch's 122, 123, 125, 126, 128, 187, 189, Laws 1890. Upon this state of facts the question arises, under the law, whether there is, independent of clerkships, an office of "secretary" of the commissioners of railroads in the State of North Dakota. If the law has not created such an office it will be conceded that the commissioners could not do so by the mere act of appointing the relator to such an office; much less would such appointment operate to authorize the state auditor to draw warrants on the treasurer, as and for the salary of such secretary, at the rate of $ 1,500 per annum. No money can be drawn from the state treasury without authority of law. If there is any law which will justify paying the relator a salary of $ 1,500 per annum, it is conceded that it must be found in § 27, of the act of 1889, which we have quoted above, and which, the relator contends, is still in force.
The attorney general cites Ch's 9 and 10 of the Laws of 1890 to show that § 27, supra, has been repealed by necessary implication, if not in terms. Chapter 9 is entitled "An Act to Provide Clerk Hire for the Various State Officers, and Making Appropriation Therefor." Chapter 10 is an amendment of Ch. 9. Section 1 of Ch. 9, as amended, provides: "The following amounts are hereby fixed and allowed for clerk hire of the several state officers hereafter mentioned," etc. Section 1 then goes on to provide clerk hire for the governor's office, and all other state offices, and concludes in the following language: "Commissioners of railroads, one thousand dollars per annum." The proviso of § 1 is as follows: "Provided, that all clerical appointments shall first be referred to the governor for his approval." Section 2 provides for a continuing annual appropriation for such clerk hire. Section 3--the emergency section--declares, as a reason why the act should go into immediate effect, that there was then existing "no provision by law for the payment of any clerk hire for the several state officers." A summary of these statutory provisions will show: First, That the state legislature, at its first session, after clothing the commissioners, then newly elected by the people, with extensive powers, some of which were of a nature to require the services of a clerical assistant, authorized the said commissioners, with the approval of the governor, to appoint a clerk to serve the commissioners. Second, The legislature provided a continuing annual salary for the clerk so to be appointed. Third, The legislature itself declared, in effect, in the emergency clause of the statute, that there was, when the act was passed, no other existing law which authorized the commissioners to appoint a person to perform their clerical work. Section 4 reads: "All acts and parts of acts in conflict with the provisions of this act are hereby repealed." We are convinced, after careful consideration, that the state constitution, which creates three commissioners of railroads to be chosen by popular vote, when read in connection with the comprehensive body of statutes enacted at the first session of the state legislature, covering all of the ground embraced in the territorial laws upon the same subjects, must be held to have effected a total abrogation of all territorial statutes which created a board of railroad commissioners, and defined their powers and duties, including the power to appoint a secretary of the board. The creation of the constitutional officers to be elected by the voters necessarily implies the abolition of the board appointed by the governor, as the two sets of officers, in the same sphere of duty, could not co-exist, and exercise their powers, without a clash...
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