State ex rel. Gammons v. Sorlie

• Citation: 219 N.W. 105,56 N.D. 650
• Decision Date: 09 April 1928
• Docket Number: No. 5444.,5444.
• Parties: STATE ex rel. GAMMONS, Secretary of State Industrial Commission, v. SORLIE et al., State Auditing Board.
• Court: United States State Supreme Court of North Dakota

56 N.D. 650

219 N.W. 105

STATE ex rel.

GAMMONS, Secretary of State Industrial Commission,

v.SORLIE et al., State Auditing Board.

No. 5444.

Supreme Court of North Dakota.

April 9, 1928.

Syllabus by the Court.

In construing a statute of doubtful meaning the courts will give weight to the practical construction placed thereon by those charged with the duty of executing and applying it. This rule is especially applicable when the construction has long prevailed, and the practical construction of the officer or department has received the implied approval of the Legislature.

A general repeal clause purporting to repeal all acts or parts of acts in conflict with the act containing such provision, in legal effect, adds nothing to the repealing force of the statute of which it is a part, and operates merely to repeal those acts on the same subject, or parts of such acts, as are clearly in conflict with the new act, and then only to the extent of the conflicting provisions.

In this case it is held that the appropriation made in the act creating the Industrial Commission of North Dakota (chapter 151, Laws 1919) did not lapse at the expiration of the biennium; but was intended by the Legislature to be a continuing appropriation, available for the use of the Industrial Commission in carrying out the purposes of the act until the appropriation had been fully expended or repealed; and that such appropriation was not repealed by general repeal clauses in the general appropriation bills of 1921 (Laws 1921, c. 7, § 3) and 1923 (Laws 1923, c. 28, § 4).

In determining the meaning of a particular term in a statute reference will be had to the meaning of the words with which it is associated.

In the construction of a particular statute or any of its provisions, all acts relating to the same subject or having the same general purpose will be read in connection with it. This rule applies with peculiar force to statutes passed at the same session of the Legislature.

The requirement of section 4, chapter 151, Laws 1919, that “all orders, rules, regulations, by-laws and written contracts, adopted or authorized by the [Industrial] Commission shall, before becoming effective, be approved by the Governor, as chairman, and shall not be in force unless approved and signed by him,” does not indicate a legislative intention to impose upon the Governor the duty of personally approving all bills for administrative expenses of the Commission; or to confer upon him the absolute power to disallow such bills.

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

Proceedings by the State, on the relation of John Gammons, Secretary of the State Industrial Commission, for mandamus, to be directed to A. G. Sorlie and others, composing the State Auditing Board. From a judgment for plaintiff, the defendants appeal. Affirmed.Langer & Nuchols, of Bismarck, for appellants.

Geo. F. Shafer, Atty. Gen., and John Thorpe, Sp. Asst. Atty. Gen., for respondent.

PER CURIAM.

This is a mandamus proceeding instituted in the district court of Burleigh county against the members of the state auditing board. The relator, Gammons, is secretary of the State Industrial Commission, and he brought the proceeding to compel the state auditing board to audit and allow his claim for salary as secretary of the State Industrial Commission for the month of July, 1927. The trial court rendered judgment in favor of the plaintiff, and the respondents have appealed. The questions presented involve the construction of certain statutory provisions.

In 1919 the Legislative Assembly created the Industrial Commission of North Dakota “to conduct and manage on behalf of the state, certain utilities, industries, enterprises and business projects.” Chapter 151, Laws 1919. The act provided:

“Sec. 2. The Industrial Commission shall consist of three members, namely: The Governor, the Attorney General and the Commissioner of Agriculture and Labor, of the State of North Dakota. Two members shall constitute a quorum for the transaction of business. * * *

Sec. 3. The Governor shall be the chairman of the Industrial Commission, and its attorney shall be the Attorney General of the state. In the transaction of its general business it may employ secretaries and other subordinate officers, clerks and agents, on such terms as it may deem proper, appointing and discharging all persons so engaged when and as, in its judgment, the public interests may require. The commission may require suitable bonds of any such secretary or other subordinate officer, clerk or agent, and shall fix the amount of the compensation of each. Such compensation, together with other expenditures for operation and maintenance of the general business of the commission, shall remain within the appropriation available in each year for such purpose.

Sec. 4. The Industrial Commission shall adopt and procure an official seal, and may authenticate therewith its documentary acts. All orders, rules, regulations, by-laws and written contracts, adopted or authorized by the commission shall, before becoming effective, be approved by the Governor, as chairman, and shall not be in force unless approved and signed by him.

Sec. 5. The Industrial Commission is hereby empowered and directed to manage, operate, control and govern all utilities, industries, enterprises and business projects, now or hereafter established, owned, undertaken, administered or operated by the State of North Dakota, except those carried on in penal, charitable or educational institutions. To that end it shall have the power, in the exercise of its sound judgment, and is hereby directed: * * *

(d) To remove and discharge any and all persons appointed in the exercise of the powers granted by this act, whether by the commission or by any manager of any utility, industry, enterprise or business project; and any such removal may be made whenever in the judgment of the commission the public interests require it; provided however, that all appointments and removals contemplated by this act shall be so made as the commission shall deem most fit to promote the efficiency of the public service. * * *

(f) To make rules, regulations, orders and by-laws for the management and operation, and for the transaction of the business, of such utilities, industries, enterprises and business projects. * * *

Sec. 6. The Industrial Commission shall prepare an annual report and file it in the office of the secretary of state not later than the first day of February of each year. The report shall contain an itemized account of its expenditures and a complete and detailed financial statement of each utility, industry, enterprise and business project under its control, showing fully all items of income and disbursements and liabilities of every nature for the calendar year ending December 31st next preceding. The report shall also set forth a list of all persons in the employ of the Commission, with the name of each person drawing a salary under its authority, the amount of the salary and all other emoluments received, and the fund from which drawn.

Sec. 7. There is hereby appropriated out of the general funds of the state, not otherwise appropriated, two hundred thousand dollars, or so much thereof as may be necessary, to carry out the provisions of this act. This appropriation is hereby made available immediately upon the passage and approval of this act.”

The Industrial Commission was organized in 1919, and a secretary appointed; and from that time until this controversy arose the Industrial Commission has had a secretary. The relator was appointed secretary and entered upon his duties as such on or about July 16, 1923, and has since that time remained an incumbent of the office and discharged the duties thereof. But it is the claim of the defendants (except the defendant John Steen, state auditor) that there is no work for a secretary of the Industrial Commission and that the Governor notified the relator that his salary as secretary of the Industrial Commission would cease after July 1, 1927, and that after that date the state examiner would act as secretary of the commission without compensation. The record shows that the claim that the state examiner had been appointed secretary of the commission was withdrawn in the district court, and the question is not presented or argued in appellant's brief on this appeal. On the oral argument it was expressly conceded by appellants' counsel that the attempt by the Governor to appoint the state examiner secretary of the Industrial Commission was wholly ineffectual. It is conceded that no action has ever been taken by the Industrial Commission removing or discharging the relator as secretary of the commission. His voucher for salary for the month of July, 1927, while not approved by the Governor, was approved by the other two members of the Industrial Commission. On this appeal therefore no question is presented as to the right of the relator to discharge the duties of the office of secretary of the Industrial Commission or his right to compensation therefor, provided funds are available out of which the compensation may be paid, and his claim for compensation has been duly approved by the officers charged with the duty of approving the same.

In the general appropriation bill enacted by the Legislative Assembly at the regular legislative session in 1927, there was appropriated for the Industrial Commission for the biennium commencing July 1, 1927, and ending June 30, 1929, the sum of $11,250, of which $5,600 was designated as salary of the secretary. The Governor vetoed this item. Laws 1927, pp. 19, 20.

The respondents claim that because of such veto no appropriation is available for the purpose of paying the salary of the relator as secretary of the Industrial Commission for the month of July, 1927. The relator, however, counters with the argument that, although the Governor vetoed the appropriation for the salary of the...