State ex rel. Langer v. Olson

• Decision Date: 16 January 1920
• Citation: 176 N.W. 528,44 N.D. 614
• Parties: STATE ex rel. LANGER, Atty. Gen., et al. v. OLSON, State Treasurer.
• Court: North Dakota Supreme Court

44 N.D. 614

176 N.W. 528

STATE ex rel.LANGER, Atty. Gen., et al.

v.OLSON, State Treasurer.

Supreme Court of North Dakota.

Jan. 16, 1920.

Syllabus by the Court.

The “legislative power,” pursuant to the Constitution (articles 26 and 27), is vested in the legislative assembly, and in the people through the initiative and referendum.

The legislative power, pursuant to the Constitution, may be exercised at a session of the legislative assembly or by the people at the polls through the initiative and referendum.

A “special session” of the legislative assembly pursuant to the Constitution (section 55, art. 2), is a “session” of the legislative assembly.

A special session of the legislative assembly is governed by the constitutional provisions (article 27) prescribing the time when acts of a legislative assembly shall become operative as laws, and is subject to the “legislative power” of the people (Const. art. 26) reserved in the initiative and referendum, in the same manner as a regular session of the legislative assembly.

An act of a legislative assembly, consonant with the Constitution, becomes effective as a law as follows:

(1) Immediately upon its passage and approval by the Governor, when stated and adopted by the legislative assembly as an emergency by the two-thirds affirmative vote required by the Constitution.

(2) On July 1st, following the close of the session, unless made subject to a referendum to the people, whereupon, by an affirmative majority of the electors, it becomes a law, and effective as such, 30 days after such election, unless otherwise specified in the act.

(3) On a date prescribed in the act, or otherwise, by the legislative assembly, subsequent to the constitutional date of July 1st.

The acts of the special session of the legislative assembly of 1919 are subject to the provisions of the Constitution, prescribing when acts of a legislative assembly become effective (article 27), and to the “legislative power” of the people reserved in the initiative and referendum (article 26). The acts adopted at such special session, not as emergency measures, S. B. No. 40 changing the composition of the State Auditing Board, and H. B. No. 44, altering and reducing the state budget, do not become operative as laws until July 1, 1920, unless made subject to a referendum to the people, and sooner ratified by the people at an election, pursuant to the Constitution.

The act H. B. No. 60, which provides that all acts passed at a special session, not emergency measures, shall be operative as laws within 10 days after the close of such special session, and which was adopted by such special session not as an emergency measure, pursuant to the constitutional provisions, is not effective as a law either until July 1st next, or unless sooner ratified by the people pursuant to such constitutional provisions, and therefore does not apply to the time when S. B. No. 40 and H. B. No. 44 become operative as laws.

Original application for mandamus by State of North Dakota, on relation of William Langer, Attorney General, Carl H. Kositzky, State Auditor, and Rachel L. Morris, against Obert A. Olson, as State Treasurer. Writ to issue forthwith.

Robinson, J., dissenting.William Langer, Atty. Gen., Edward B. Cox, and Albert E. Sheets, Jr., Asst. Attys. Gen., for relators.

Wm. Lebke, of Fargo, and Foster & Baker, of Bismarck, for respondent.

BRONSON, J.

This is an application for the exercise of the original jurisdiction of this court to compel the State Treasurer to make payment of a state warrant to the relatorMorris for her salary as a special clerk in the office of the State Auditor from December 19, 1919, to December 31, 1919.

Among the issues presented, the prime question involved is the validity of S. B. No. 40 and H. B. No. 44, adopted by the special session of the legislative assembly of 1919 (chapters 21 and 5), as present operative laws, pursuant to the provisions of H. B. No. 60 (Laws 1919, Sp. Sess., c. 27), also enacted by such special session, which makes operative such acts 10 days after the close of the session.

The relator Morris is a special clerk in the office of the State Auditor. She has presented a warrant issued by the State Auditor for her salary as such clerk from December 20 to December 31, 1919. The State Treasurer has refused payment. The warrant was issued upon a voucher for her salary, payable out of the contingent fund of the State Auditor, such voucher being approved by the State Auditor and the State Auditing Board as composed pursuant to section 375, C. L. 1913. The special session of the legislative assembly held from November 25, 1919, to December 11, 1919, passed acts which affect the composition of such State Auditing Board and the contingent fund of such State Auditor.

S. B. No. 40, enacted by this special session, amends said section 375, C. L. 1913, by removing from the State Auditing Board the State Auditor and the Secretary of State and substituting instead the Commissioner of Agriculture and Labor and the State Bank Examiner.

H. B. No. 44 amends the Budget Act (chapter 16, Laws 1919) by making large and substantial reductions in the amounts of the appropriations for various departments, and, in particular, eliminating the contingent fund of the State Auditor, out of which the salary warrant involved is payable.

Measures were enacted which changed the composition of the Emergency Commission (H. B. No. 13 [Laws 1919, Sp. Sess., c. 20]) the composition of the State Equalization Board (S. B. No. 26 [chapter 35]), reduced the number of assistants to the Attorney General (S. B. 4 & 13 [chapters 18, 19]), and transferred the licensing and inspection of pool halls and theaters, etc. (H. B. No. 7) from the department of the Attorney General to the State Sheriff.

In all, this special session enacted some 72 measures: 33 of these were emergency measures, enacted as such pursuant to the constitutional provisions requiring for each a two-thirds affirmative vote of both branches of the legislative assembly; 39 of such measures did not receive such two-thirds vote, and were enacted by a majority vote. Among these measures so receiving a majority vote, are S. B. No. 40, and H. B. No. 44, H. B. No. 60, and the measures affecting the department of the Attorney General.

H. B. No. 60 reads as follows:

“An act declaring and defining the time within which laws passed at any special session of the legislative assembly shall take effect.

Whereas, the Constitution of this state fails to define time within which laws enacted at any special session shall take effect; and

Whereas, there should be some definite and certain time when such laws take effect; therefore

Be it enacted by the legislative assembly of the state of North Dakota:

All acts of any special legislative assembly of the state of North Dakota shall take effect within ten days after the close of any such special session, unless the Legislature by a vote of two-thirds of the members present and voting in each house shall declare it to be an emergency measure, in which event it shall take effect and be in force from and after its passage and approval by the Governor.”

In the Senate this bill was approved by a vote of 29 ayes and 12 nays; in the House, by a vote of 66 ayes and 41 nays. It was approved by the Governor on December 11, 1919.

This act (H. B. No. 60), affecting the measures as above stated, has created uncertainty and doubt as to the composition and powers of certain existing boards, the existence of the contingent fund involved, and also salaries, the auditing of accounts, and the prerogatives and functions of state officials.

The issues present squarely a question for the exercise of the original jurisdiction of this court, involving the prerogatives and functions of state officials. If H. B. No. 60 is a present operative statutory enactment, which affects acts, not emergency measures adopted by this special session, clearly the salary warrant involved herein should not be paid, both by reason of want of auditing by a proper state auditing board, and also by want of a fund out of which payment may be made; for by the terms of H. B. No. 60, if operative as a law, all the acts of such session not emergency acts became effective as laws, commencing on December 22, 1919.

On December 20, 1919, there was filed with the Secretary of State referendum petitions upon said H. B. No. 60, which the Secretary of State has certified are sufficiently signed by some 15,000 electors of the state for referendum to the people of such act under the constitutional amendment (article 26) provided therefor (see Laws 1919, p. 503).

The relators contend that H. B. No. 60 without determining the constitutionality of this provision, is, in any event, subject to the referendum filed and therefore is suspended; that the act is unconstitutional, because in contravention of the constitutional provision (art. 2, § 67, as amended [see Laws 1919, p. 506]) providing the time when acts of the Legislature, not emergency measures, shall become effective; and, furthermore, that said H. B. No. 60 is unconstitutional because violative of section 61 of the Constitution, which provides that no bill shall cover more than one subject.

The respondent contends that, as applied to a special session of the legislative assembly, there exists no constitutional provision applicable concerning the time when the acts involved become operative; that section 67 of the Constitution as amended does not apply to a special session of the legislative assembly; that H. B. No. 60 covers one subject, namely, the time when acts of a special session become effective; that, even though H. B. No. 60 be deemed subject to the referendum petitions filed, and therefore suspended (which is not admitted) the constitutional provisions concerning the time not being applicable to a special session, the acts involved, and which the relators contend are not effective as laws, became...