State ex rel. Langer v. Kositzky

• Decision Date: 24 January 1918
• Citation: 38 N.D. 616,166 N.W. 534
• Parties: STATE ex rel. LANGER, Atty. Gen., v. KOSITZKY, State Auditor.
• Court: North Dakota Supreme Court

38 N.D. 616

166 N.W. 534

STATE ex rel.LANGER, Atty. Gen.,

v.KOSITZKY, State Auditor.

Supreme Court of North Dakota.

Jan. 24, 1918.

Syllabus by the Court.

The mere presence of, and participation by, a member of the Supreme Court in a case in which he may be disqualified on account of his interest in the result, does not render the proceedings and judgment of the court in that case void, where his presence is not necessary to constitute a quorum, and his vote does not determine the result, although section 100 of the state Constitution provides that in case a judge of the Supreme Court shall be in any way interested in a case brought before said court the remaining judges of said court shall call one of the district court judges to sit with them in the hearing of said cause.

Under section 7340, Comp. Laws 1913, providing the Supreme Court shall be always open for the issue and return of all writs which it may lawfully issue, and that any judge of said court may order the issuance of any such writ, an order for the issuance of an alternative writ of mandamus, signed by a district judge who, under Const. § 100, had been called in to sit in the place of a member of said court who was disqualified by reason of his interest, was legally issued.

An application to the Supreme Court for a writ of mandamus directed to the State Auditor, to require him to issue his warrant upon the State Treasurer for the payment of the expenses of the judges of the Supreme Court, without the filing of an itemized statement, as provided by section 720, Comp. Laws 1913, and by said section 720, as amended by section 2, c. 224, Laws 1917, involves the prerogatives, rights, and franchises of the state government, and invokes the original jurisdiction of the Supreme Court.

Section 720, Comp. Laws 1913, providing that each judge of the Supreme Court shall receive the sum of $500 per annum for expenses, to be paid in quarterly payments without filing any itemized statements, is not, if interpreted as providing an additional compensation for the services of the judges of such court, so far as the judges now in office are concerned, unconstitutional as being in violation of section 99 of the state Constitution, providing that the compensation for the services of a judge of the Supreme Court shall not be increased or diminished during the term for which he shall have been elected.

Section 720, Comp. Laws 1913, and the said section as amended by section 2, c. 224, Laws 1917, providing that each judge of the Supreme Court shall receive the sum of $500 per annum for expenses, to be paid in quarterly payments, without filing any itemized statement, if interpreted as providing for the payment of “expenses” rather than for “services,” are not unconstitutional as being in violation of either section 99 of the Constitution, providing that the compensation for the services of a judge of the Supreme Court shall not be increased or diminished during the term for which he shall have been elected, or of section 186 of the state Constitution, providing that no bills, claims, accounts, or demands against the state shall be audited, allowed, or paid until a full itemized statement shall be filed with the officer or officers whose duty it may be to audit the same.

Additional Syllabus by Editorial Staff.

To audit a claim, account, or demand means to examine, adjust, pass upon, and settle it. It involves an exercise of discretion by the auditing officer or board, and is required for the purposes of determining the amount, if any, to be paid.

Application by the State of North Dakota, upon the relation of William Langer, Attorney General, for a writ of mandamus against Carl R. Kositzky, as State Auditor. Writ allowed.

William Langer, Atty. Gen., and D. V. Brennan, Asst. Atty. Gen., for petitioner. Theo. Koffel, of Bismarck, for respondent.

COOLEY, District Judge.

This is an original proceeding in the Supreme Court for a writ of mandamus directing and commanding the State Auditor to forthwith credit to the account of the Supreme Court of the state of North Dakota the appropriation for the additional compensation of the members of said court provided for in subdivision 3 of chapter 24 of the laws of 1917, and to issue to the several justices of said court warrants for the quarterly installments of said additional compensation which became payable at the quarterly periods since on or about January 1, 1917, without the filing of an itemized statement therefor.

[1] This proceeding was instituted by an application to the Supreme Court for an order directing the issuance of an alternative writ. When the application for such order was presented to the court, four of its five members, deeming themselves disqualified to sit in a matter involving their right to the compensation which is the subject of this controversy, withdrew from any participation in the proceedings, and the remaining member of the court, Justice Robinson, under the provisions of section 100 of the state Constitution, called in four district judges, to wit: W. L. Nuessle, judge of the Sixth judicial district; A. T. Cole, judge of the Third judicial district; J. A. Coffey, judge of the Fifth judicial district; and Chas. M. Cooley, judge of the First judicial district-to sit with him in the further proceedings that might be had in said cause. Justice Robinson and two of the district judges thus called in signed the order for the issuance of the alternative writ, which was made returnable on December 1, 1917. On that date the Supreme Court of North Dakota, as above constituted, assembled in the courtroom of the said court, and heard and considered the issues raised by the alternative writ and the respondents' return thereto.

At the outset objection was made to the jurisdiction of the court on the grounds: (1) That J. E. Robinson, one of the justices of the said court, was disqualified from acting in the matter because of his interest in the result; (2) that the order for the alternative writ was not signed by a majority of the members of said court qualified to act; and (3) that the case is not of public concern, involving questions affecting the sovereign rights of the state or its franchises or privileges. It is unnecessary to determine whether Justice Robinson, because of any interest in the result, was disqualified to sit as a member of this court upon the hearing and determination of the issues in this proceeding. The fact remains that the court, as constituted, included four district judges qualified to act, and who constituted a quorum, and a majority of the members of said court, and who were invested, so far as this controversy is concerned, with the same power and authority, and whose judgment is entitled to the same force and effect, as that of the justices who are the regularly elected members of the court. State ex rel. Linde v. Robinson, 35 N. D. 410, 160 N. W. 512;State ex rel. Linde v. Robinson, 35 N. D. 417, 160 N. W. 514.

The mere presence of, and participation by, a member of a judicial body disqualified to act in a particular case does not necessarily invalidate the proceedings and judgment of that body. Particularly is this true if his presence is not necessary to constitute a quorum, or his vote does not determine the result. State v. Bradish, 95 Wis. 205, 70 N. W. 172, 37 L. R. A. 289, dissenting opinion of Justice Marshall.

Neither under the Constitution nor the statutes of this state is any person or body of persons invested with the power to prevent a justice of the Supreme Court, disqualified on account of interest, from participating in any case properly coming before that court. Nor under the Constitution of this state, is the Legislature empowered to make any provision for the transfer of any such case to any other jurisdiction. To hold that the mere participation by any justice of the Supreme Court in a case in which he is disqualified to act would invalidate the proceedings and judgment of the court would give to such justice the power, if he so willed, to absolutely bar the door of justice, which should be open to all, against one of the parties. While the Constitution of South Dakota contains no provision for the calling in of other judges in case any member of the Supreme Court is disqualified for any reason, much of the reasoning of the Supreme Court of that state in the case of McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, is applicable to the condition here presented.

[2] Inasmuch as the district judges who were called in to sit in the place of those who deemed themselves disqualified became, when so called, so far as this case is concerned, judges of the Supreme Court, the order for the alternative writ which was signed by two of such judges was legally issued under section 7340, Comp. Laws 1913, which provides that the Supreme Court shall be always open for the issue and return of all writs which it may lawfully issue, and that any judge of said court may order the issuance of any such writ.

That the proceedings involve the rights, franchises, and privileges of the state government, and that this court had constitutionaland statutory authority to exercise original jurisdiction herein, is well settled by the decision of this court in the case of State ex rel. Linde v. Jorgenson, 25 N. D. 539, 142 N. W. 450, 49 L. R. A. (N. S.) 67, wherein a similar principle was involved, the difference between the two cases being only in the extent to which the rights, franchises, and privileges of the state were affected.

[3][4] Upon the merits this controversy involves the question of the interpretation and constitutionality of section 1, c. 82, of the Session Laws of 1907 (section 720, Comp. Laws, 1913), and of said section 720, Comp. Laws 1913, as amended by section 2, c. 224, of the Session Laws of 1917.

Section 1, c. 82, Laws 1907, provides:

“Each judge of the Supreme Court of this state shall receive the sum of...