State ex rel. Johnson v. Baker

• Citation: 21 N.W.2d 355,74 N.D. 244
• Decision Date: 18 January 1946
• Docket Number: No. 6968.,6968.
• Parties: STATE ex rel. JOHNSON, Attorney General, v. BAKER, State Auditor.
• Court: United States State Supreme Court of North Dakota

74 N.D. 244

21 N.W.2d 355

STATE ex rel. JOHNSON, Attorney General,

v.BAKER, State Auditor.

No. 6968.

Supreme Court of North Dakota.

May 26, 1945.

On Petition for Modification Jan. 18, 1946.

Original proceeding by the State, on the relation of Nels G. Johnson, Attorney General, for a writ of mandamus to compel Berta E. Baker, as State Auditor, to draw warrants for moneys due members of the Legislative Assembly for living expenses.

Writ granted.

Syllabus by the Court.

1. A legislative enactment is presumed to be constitutional, and in case of doubt as to its constitutionality the doubt must be resolved in favor of its validity.

2. The constitutionality of a statute cannot be questioned by one whose rights it does not affect and who has no legal interest in defeating it.

3. The constitutionality of a statute will be considered only when the question is properly before the court and necessary to a determination of the cause.

4. As a general rule a ministerial officer to whom no injury can result and to whom no violation of duty can be imputed by reason of the performance of an act in compliance with the requirements of a statute, may not question its constitutionality.

5. Pursuant to the constitution and the statutes of the state of North Dakota, when a state officer is in doubt as to the constitutionality of a statute, under the terms of which he is called upon to perform a ministerial act, it is his duty to consult with and procure the opinion of the attorney general with respect to the matter and be guided in his action by that opinion until it is superseded by judicial decision. If he follows this course he will be protected and absolved from liability under his oath and on his official bond. If he does not request an opinion from the attorney general, or, having done so disregards it, and refuses to perform as required by the statute, he cannot raise the question of its constitutionality as a defense in a mandamus proceeding to compel performance.

MORRIS and BURR, JJ., dissenting.

Nels G. Johnson, Atty. Gen., and P. O. Sathre, Asst. Atty. Gen., for petitioner.

Sullivans, Fleck & Higgins, of Mandan, for respondent.

Alvin C. Strutz, of Bismarck, amicus curiae.

NUESSLE, Judge.

This proceeding was instituted to compel the respondent, the state auditor, Berta E. Baker, to draw warrants for money claimed to be due them by members of the legislative assembly pursuant to the provisions of House Bill 84, enacted into law by the Twenty-Ninth Legislative Assembly of the State of North Dakota. See Chapter 72, Session Laws 1945.

House Bill 84 provides that each member of the legislative assembly of the State of North Dakota shall be entitled to and shall receive the sum of three hundred dollars as reimbursement for his living expenses for each legislative session, to be paid in the same manner as the regular per diem of the members is paid. It also appropriated funds for the payment thereof. Vouchers for such expenses in the proper form were duly presented to the respondent. She refused to draw warrants for their payment. The state, on the relation of the attorney general, then brought this proceeding, and invoking the original jurisdiction of this court upon the ground that the controversy involved the sovereign rights of the state, its franchises and prerogatives, applied for a mandatory writ directing the respondent auditor to issue the warrants. See, North Dakota Constitution, section 87; State v. Nelson County, 1 N.D. 88, 45 N.W. 33,8 L.R.A. 283, 26 Am.St.Rep. 609;State ex rel. Steel v. Fabrick, 17 N.D. 532, 117 N.W. 860;State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A.1918B, 156, Ann.Cas.1918A, 583;State ex rel. Graham v. Hall, N.D., 15 N.W.2d 736. Whereupon this court assumed jurisdiction and issued its order directed to the respondent to show cause why the writ should not issue as prayed.

In her answer and return to the order to show cause, the auditor admits her refusal to draw the warrants in question and justifies it on the ground that there is grave doubt as to the constitutionality of House Bill 84, because of the provisions of section 45 of the Constitution of North Dakota, which provides:

‘Each member of the legislative assembly shall receive as compensation for his services for each session, five dollars per day, and ten cents for every mile of necessary travel in going to and returning from the place of the meeting of the legislative assembly on the most usual route.’

And in that behalf she alleges:

‘That the validity of the said House Bill 84 is at least in grave doubt, similar statutes having been held unconstitutional and invalid in many other state as the respondent is informed and believes, although other states have declared them valid. That the appropriation therefor contained in H.B. 84 is $50,000 and the disbursement from the general fund of the state due as soon as the payrolls are presented to the respondent after the close of the legislative session involve, as the respondent is informed and believes, a total of more than $48,000.

‘That it is a matter, therefore, of great importance to the respondent in the due and proper discharge of her duties to safeguard the funds of the state of North Dakota and to make no disbursement therefrom improperly or illegally, and to have the validity of the said statute determined before the disbursement thereof, to avoid liability under respondent's official bond, and particularly in view of the fact that if it should be declared by the courts of this state that the said act is invalid, after the disbursement of any of the said funds it would be the duty of the respondent, under the provisions of sub-section 20b of section 54-1001, R.C.1943, to forthwith institute an action in the name of the State against the recipients of the said funds to compel their return to the state.

‘Wherefore, the respondent prays that the above entitled proceeding be dismissed, that no peremptory writ be issued to the respondent unless the court determines in the above entitled proceeding that the said House Bill 84 is valid and constitutional and that the respondent receive her costs and disbursements herein.’

In short, the respondent admits her refusal to issue the warrants and justifies it by reason of her grave doubt as to the constitutionality of the statute in question and, in effect, asks an advisory opinion from this court as to its constitutionality, since, as she alleges, if she issues the warrants and the statute is unconstitutional she will have violated her duty under her oath of office and become liable on her official bond.

The relator challenges the sufficiency of this return. He contends the statute is constitutional and valid but that, in any event, whether or not this be so the auditor is merely a ministerial officer; that her duty prescribed by House Bill 84 is to draw warrants for the expenses of the members of the legislative assembly when proper vouchers are presented and warrants are demanded; that she will violate no duty and will suffer no injury by so doing; that accordingly she has no personal interest in and cannot question the constitutionality of the statute. On the other hand, the respondent contends that she is a constitutional officer; that as such she is charged with the duty of conserving the public funds; that while she is required pursuant to section 54-1001, R.C.1943, to draw warrants for the payment of money directed by law to be paid out of the state treasury, section 54-1002 provides that warrants shall not be drawn unless there are funds in the treasury applicable to the payment thereof to meet the same; that if House Bill 84 is unconstitutional there is no law either authorizing and directing the issuance of such warrants or appropriating funds applicable to the payment thereof, and, accordingly the drawing of the warrants will be violative of the duty of the respondent and will render her liable under her oath on her official bond; that consequently she is in duty bound to question the constitutionality of the statute and has the right to do so because she will be affected by it.

In view of the issues thus raised it may be well to state here certain principles this court has heretofore pronounced or approved and followed that must be looked to in considering them. In the first place, this court may not render advisory opinions. See, section 96, Const.North Dakota; State ex rel. Olsness v. McCarthy, 53 N.D. 609, 207 N.W. 436;Langer v. State of North Dakota, 69 N.D. 129, 284 N.W. 238. When the legislature speaks, the people speak. Murphy v. Townley, 67 N.D. 560, 274 N.W. 857. ‘* * * all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions. * * * Constitutionalprovisions are in the nature of grants of power to the executive and judiciary, but are limitations upon the power of the legislature.’ State ex rel. Standish v. Boucher, 3 N.D. 389, 56 N.W. 142, 145,21 L.R.A. 539; State ex rel. Linde v. Taylor, supra. So all legislative enactments are presumed to be constitutional and in all cases of doubt the doubt must be resolved in favor of their validity. Martin v. Tyler, 4 N.D. 278, 60 N.W. 392,25 L.R.A. 838; State ex rel. Linde v. Taylor, supra; State ex rel. Linde v. Packard, 35 N.D. 298, 160 N.W. 150, L.R.A.1917B, 710;State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105. In Martin v. Tyler, supra, this court said [4 N.D. 278, 60 N.W. 395]:

‘We must remember that legislative power is primarily plenary, and that constitutions are not grants of, but restrictions upon, that power. Hence he who would challenge a legislative enactment must be able to specify the particular constitutional provision that deprived the legislature of the power to pass the enactment. We must remember that it is the duty of courts to reconcile statutes with the constitution when that...