State ex rel. Langer v. Olson
| Decision Date | 16 January 1920 |
| Court | North Dakota Supreme Court |
Original Petition for Mandamus to compel the state treasurer to pay a state warrant to a special clerk in the office of the State Auditor. Writ granted forthwith.
Writ issued.
William Langer, Attorney General, Edward B. Cox, and Albert E Sheets, Jr., Assistant Attorneys General, for plaintiffs.
The words "no" or "any" when used for the purpose of classification are all inclusive or exclusive. Cooper v. Utah, 35 Utah 570, 136 Am. St. Rep. 1075 102 P. 202; American Surety Co. v. Bernstein, 101 Tex. 189, 105 S.W. 990; Hershiser v. Ward, 29 Nev 228, 87 P. 171; City v. Cincinnati R. Co. 144 Ky. 646, 139 S.W. 858; Platt v. Payette, 19 Idaho 470, 114 P. 25; 1 Words & Phrases, 2d Series, p. 216, under the word "any;" Com. v. Frederick, 119 Mass. 199.
Where the court provides either expressly or by implication that acts of the legislative department shall not become effective until a certain time has elapsed so as to give the people an opportunity to review such act tending in any degree to cut off this reserved right is a violation of the Constitution. State v. Meate, Wash. , 147 P. 11; Statutes, Cent. Dig. 330; Dec. Dig. 248.
While the established procedure adopted by one succeeding body after another for many years oftentimes controls with the courts in their decisions, nevertheless, "legislative interpretation of old laws has no judicial force." Frey v. Meichie, 68 Mich. 323, 38 N.W. 184; see also Statutes, Cent. Dig. 298; Dec. Dig. 220.
William Lemke, Foster & Baker, and Joseph Coghlan, for defendant.
"A presumption in favor of the constitutionality is raised by the mere fact of the enactment of a statute by the legislature; and the burden of showing that it is unconstitutional is on the party asserting it." 12 C. J. 791, 794, §§ 221, 222.
"It is an established rule of construction that, when a Constitution confers a power or enjoins a duty, it also confers, by implication, all powers that are necessary for the exercise of the one or for the performance of the other." 12 C. J. 719, citing cases in note 26.
"It is regarded as a safe rule to look to the nature and objects of the particular powers, duties and rights with all the lights and aids of contemporary history, and give to the words of each just such operation and force consistent with their legislative meaning as may fairly secure and attain the ends proposed. " 12 C. J. 719, note 26 f; Prigg v. Pennsylvania, 16 Pet. 539, 10 L.Ed. 1060; State v. Glenn, 18 Nev. 34, 42, 1 P. 86; Story, U. S. Const. § 405a.
"Merely technical rules of the construction are not to be applied so as to defeat the principles of the government or the objects of its establishment." 12 C. J. 699, § 42 and note 73, p. 700.
"The legislature needs no specific constitutional authorization for its enactments, as all the legislative authority of the state which is not denied to the legislature by the Constitution of the state resides in that body." 12 C. J. 702, § 44, 749, notes 17 and 18.
"When no time for the going into effect of a statute is fixed by the statute itself, and there is no constitutional or general statutory provision governing the matter, it becomes effective on the day of its passage and needs no promulgation to give it operation." 25 R. C. L. 797, citing Mathews v. Zane, 7 Wheat. 164, 5 L.Ed. 425.
"Independent of any constitutional provision, a statute duly made takes effect from its date, when no time is fixed, and this rule is fixed beyond the power of judicial control." Parkinson v. State, 14 Md. 184, 200.
"A statute, when duly made, takes effect from its date when no time is fixed and this is now the settled rule." 1 Kent, Com. 7th ed. *454.
House Bill No. 60 interprets the Constitution, and the legislative interpretation should be followed by the court. Gantt v. Brown, 224 Mo. 271, 149 S.W. 644, Ann. Cas. 1913D, 1283; Fargo v. Powers, 220 F. 697; Coyle v. Smith, 28 Okla. 121, 113 P. 945; Smith v. Auditor General, 165 Mich. 140, 139 N.W. 557.
OPINION
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 relator Morris, for her salary, as a special clerk, in the office of the state auditor, from December 19th, 1919, to December 31st, 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, as present operative laws, pursuant to the provisions of H. B. No. 60, also enacted by such special session, which makes operative such acts ten 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 § 375, Comp. Laws 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 § 375, Comp. Laws 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 (Laws 1919, chap. 16), 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), the composition of the state equalization board (S. B. No. 26), reduced the number of assistants to the attorney general (S. B. 4 & 13), 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 seventy-two measures; thirty-three 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; thirty-nine 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, 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:
In the senate, this bill was approved by a vote of twenty-nine ayes and twelve nays; in the house, by a vote of sixty-six ayes and forty-one 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 (art. 26), provided therefor.
The relators contend that H. B. No. 60, without determining the constitutionality of this provision, is, in any event subject to the refendum filed and therefore is suspended; that the act is unconstitutional because...
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