State ex rel. Ilvedson v. District Court in and for Ward County

• Decision Date: 13 April 1940
• Docket Number: 6660.
• Citation: 291 N.W. 620,70 N.D. 17
• Court: North Dakota Supreme Court

291 N.W. 620

70 N.D. 17

STATE ex rel. ILVEDSON v. DISTRICT COURT IN AND FOR WARD COUNTY et al.

No. 6660.

Supreme Court of North Dakota.

April 13, 1940

Syllabus by the Court.

1. The office of state's attorney is imbedded in the State Constitution, and the incumbent of such office is a constitutional officer.

2. The people have reserved to themselves, in the State Constitution, the right to elect a state's attorney in each of the organized Counties, and the method so provided for choosing the state's attorney is exclusive.

3. Where the Constitution provides that a state's attorney " shall be subject to removal for misconduct malfeasance, crime or misdemeanor in office, or for habitual drunkenness or gross incompetency in such manner as may be provided by law", the causes for removal so specified are exclusive.

4. Where the Constitution provides that a certain elective constitutional officer, holding office for a fixed term shall be subject to removal from office for certain enumerated causes " in such manner as may be provided by law", the manner of removal prescribed by the Legislature must conform to the fundamental principles of due process of law, unless the Constitution clearly discloses an intention that removal may be made without notice and hearing.

5. Subdivision 3, Section 3376, C.L.1913, which makes it the duty of a state's attorney to prosecute certain actions accruing to the State or his County, and subdivision 9 of said Section, which provides that in case the state's attorney of any County refuses or neglects to perform such duty, after it has been properly brought to his attention; or neglects or refuses to institute " a civil action in which the State is a party" and which action " should be instituted and the fact of such refusal or neglect to perform such duty, and that the action is one that should be prosecuted, has been brought before the judge of the district court in the judicial district having jurisdiction of such action, by affidavit or otherwise, and said judge is satisfied that such action should be prosecuted, and that said state's attorney has failed or neglected to perform his duty, then in that case, * * * he shall appoint, by an order to be entered upon the minutes of the court, some suitable person, an attorney-at-law, and the person so appointed shall thereupon be vested with all the powers of such state's attorney for that action, but for no other purpose, and the district court shall by order, to be entered in the minutes of the court, fix his fee therefor, which amount shall be allowed by the board of county commissioners and which amount, if so ordered by the court, shall be deducted from the salary of the state's attorney and the person so appointed shall be the only person authorized to proceed therein", do not authorize the judge of the District Court to make an order without notice and hearing determining that the state's attorney has failed and neglected to institute an action which it was his duty to institute, and appointing another attorney to institute such action instead of the state's attorney.

Proceeding by the State, on the relation of Roy A. Ilvedson, against the District Court in and for Ward County, N. Dak., and the Honorable John C. Lowe, as Judge of the District Court in and for Ward County, N. Dak., for a supervisory writ to set aside and annul a certain order entered by the Honorable John C. Lowe.

Supervisory writ ordered to issue.

Roy A. Ilvedson in pro per, B. A. Dickinson, O. B. Herigstad, and Halvor L. Halvorson, all of Minot, for relator.

Paul Campbell, of Minot, for respondents.

CHRISTIANSON, Judge.

The relator, Roy A. Ilvedson, has applied to this Court for a supervisory writ to be directed to the District Court of Ward County, in the Fifth Judicial District, and to the Honorable John C. Lowe, one of the Judges of the Fifth judicial District, which writ shall set aside and annul the following order entered by said judge Lowe:

" Whereas, It appearing to the undersigned that a petition and demand was presented to Roy Ilvedsen, (Ilvedson), State's attorney of Ward County, on or about May 5, 1939, by certain individuals representing the Good Government League of Minot, North Dakota, that he institute an action in behalf of Ward County against the county commissioners and others for the recovery of debts due Ward County from said county commissioners and others, arising out of illegal allowances and payments of monies by said county commissioners, and receipt thereof by others, a copy of which is hereto attached for reference; and

Whereas, Various taxpayers orally presented requests to the undersigned to appoint an attorney to proceed with a case against the county commissioners and others as demanded of the State's attorney, which requests resulted in certain correspondence between the undersigned and the State's attorney, which correspondence is attached hereto for reference;

Whereas, It appears from said correspondence that the State's attorney, after full investigation, has commenced certain actions against the county commissioners for small amounts, and some settlements made thereon, and that no other actions are contemplated by the State's attorney; and

Whereas, The undersigned is informed and believes that the records of the county auditor's office available to the State's attorney shows large amounts of money illegally paid and ordered paid by the county commissioners to themselves and others, but upon which the said State's attorney has failed, neglected, and refused to commence any actions to recover the same as required by law;

Whereas, The undersigned has been presented with a request that such action be commenced, and that counsel be appointed, said request being dated November 4, 1939, and is attached hereto for reference; and

Whereas, The Undersigned is satisfied that such an action should be prosecuted and that the State's attorney has failed and neglected to perform his duty as provided by law, and that the State's attorney is not a proper person to prosecute a case by Ward County against the county commissioners and others for the recovery of money; now, therefore,

It is ordered that Paul Campbell, an attorney at law, be and he hereby is appointed for the purpose of commencing an action in the name of Ward County and against the county commissioners and others for the recovery of any and all monies due Ward County from such persons not barred by the Statute of Limitations;

It is further ordered that this order be entered upon the minutes of the Court.

Dated at Minot, North Dakota, this 7th day of February, 1940.

Jno. C Lowe, District Judge."

The order was entered without notice and without hearing. The record certified to this Court contains the following as the papers on which the order is based:

The petition and demand presented to the State's Attorney on May 5, 1939.

A petition addressed to Judge Lowe, dated June 1, 1939.

A petition addressed to Judge Lowe, dated November 4, 1939.

Certain correspondence between the State's Attorney and Judge Lowe.

A copy of a general report made by the State's Attorney on the investigation of the irregular charges made by the County Commissioners of Ward County.

The petition and demand presented to the State's Attorney, on May 5, 1939, bears the signatures of six persons who are declared to be taxpayers and electors of Ward County and members of the Good Government League. There is nothing in the record to indicate who compose the Good Government League or what the purposes and objectives of that organization are. The petition contains a general statement that there are certain claims and demands in favor of the County arising out of illegal fees and excessive charges made by the members of the Board of County Commissioners of Ward County, and it is stated that this appears from the record and proceedings had in the District Court, the opinions of the Attorney General's office and proceedings had in the Supreme Court, and demand is made that the State's Attorney forthwith bring an action in the name and behalf of the County for the recovery of any and all illegal fees, claims and demands allowed and paid to any member of the Board of County Commissioners of Ward County. The petition addressed to Judge Lowe, dated June 1, 1939, calls attention to the written demand made upon the State's Attorney during the month of May and states that no action has been commenced and asks the District Court to appoint some suitable person to institute any and all actions and proceedings necessary for recovery in the name and behalf of Ward County of illegal fees, claims, and demands paid by the members of the Board of County Commissioners. To this petition is attached a sheet of paper containing the signatures of six persons. The petition dated May 5, 1939, is of similar import and is signed by nine persons, some of whom also signed the former petition. The petition dated June 1st recites that the signers are electors and taxpayers of Ward County, and the petition dated November 4th recites that the signers are citizens and taxpayers of Ward County. Both petitions ask that an attorney be appointed to bring proper action to recover moneys due the County on account of illegal fees, claims and demands unlawfully allowed by the County Commissioners. None of the petitions purport to point out or identify any particular claim in any stated amount or against any named person or persons. The statements in the petitions are to the general effect that certain claims exist, but there is no attempt to give any dates, or identify any transactions, or any particular payment or payments by the County Commissioners, claimed to have been illegal. The only reference made in any document to any...