State ex rel. Link v. Olson, 9673

• Decision Date: 06 November 1979
• Docket Number: No. 9673,9673
• Parties: STATE of North Dakota ex rel. Arthur A. LINK, in his capacity as Governor of the State of North Dakota, Petitioner, v. Allen I. OLSON, in his capacity as Attorney General of the State of NorthDakota, and Ben Meier, in his capacity as Secretary of State of the State ofNorth Dakota, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 262

286 N.W.2d 262

STATE of North Dakota ex rel. Arthur A. LINK, in his

capacity as Governor of the State of North Dakota, Petitioner, v. Allen I. OLSON, in his capacity as Attorney General of the

State of NorthDakota, and Ben Meier, in his

capacity as Secretary of State of the

State ofNorth Dakota, Respondents.

Civ. No. 9673.

Supreme Court of North Dakota.

Nov. 6, 1979.

Albert A. Wolf, Sp. Counsel for the Governor of the State of N. D., Bismarck, for petitioner.

Allen I. Olson, Atty. Gen., argued, and Gary S. Helgeson, Deputy Atty. Gen., Bismarck, for respondents.

PEDERSON, Justice.

This case concerns the validity of a partial veto by Governor Link and the constitutionality of the assignment by the legislature of duties to the lieutenant governor. Governor Link has asked that we exercise original jurisdiction. We hold that the exigencies require that we accept original jurisdiction in this case. It is our conclusion that: (1) the attempted veto of § 1 of Senate Bill 2460, ¹ Forty-sixth Legislative Assembly, was void and not authorized by § 80 of the North Dakota Constitution; (2) SB 2460, in its entirety, became law by the operation of § 79 of the North Dakota Constitution when, within 15 days after the end of the legislative session, a valid veto was not filed with the secretary of state; (3) that part of § 1 which assigns the duties of federal aid coordinator to the lieutenant governor is unconstitutional; and (4) the balance of SB 2460 remains operational under the direction of the federal aid coordinator appointed by the governor.

Senate Bill 2460 was passed during the Forty-sixth Legislative Assembly. It is the intent of the legislature that this law would abolish both the division of economic opportunity (a function of the governor's office) by repeal of § 54-07-06, NDCC, and the state planning division (a function of the department of accounts and purchases) by repeal of §§ 54-34.1-01, 54-34.1-02, 54-34.1-03, 54-34.1-04, 54-34.1-05, 54-34.1-08, 54-34.1-09, and 54-34.1-15, NDCC.

Section 1 of SB 2460 created a federal aid coordinator office and assigned the duties thereof to the lieutenant governor, or to a temporary appointee of the governor "(i)f the lieutenant governor cannot serve." ² Those responsibilities previously handled by the division of economic opportunity and the division of state planning, as well as responsibilities for handling energy management functions, were assigned to the federal aid coordinator. Approximately $20,000,000 was appropriated to the federal aid coordinator office for the July 1, 1979 June 30, 1981 biennium by § 21 of SB 2460.

Governor Link testified before a committee of the legislature, urging rejection of SB 2460 on the primary ground that designation of the federal aid coordinator office within the office of the lieutenant governor infringed upon the governor's authority to assign duties and responsibilities to the lieutenant governor, as provided in § 77 of the North Dakota Constitution. The legislature nevertheless passed SB 2460 with a conditional assignment of the duties to the lieutenant governor. Section 1 provides:

"FEDERAL AID COORDINATOR OFFICE APPOINTMENT LOCATION

OF OFFICE. There is created in the office of the lieutenant governor a federal aid coordinator office. The lieutenant governor shall be the coordinator. If the lieutenant governor cannot serve as coordinator prior to June 30, 1981, the coordinator shall be appointed by and shall serve at the pleasure of the governor until June 30, 1981. The lieutenant governor, while serving as coordinator, shall receive the total salary and unvouchered expense allowance in the amount provided for the state tax commissioner during the period beginning July 1, 1979, and ending June 30, 1981. If the coordinator is appointed by the governor, the salary of the coordinator shall be set by the governor within the limits of legislative appropriation. The coordinator may employ such other persons as may be necessary and may fix their compensation within the appropriation made for that purpose. If possible, the entire federal aid coordinator office shall be housed at one location on the state capitol grounds, subject to sufficient space being made available by the director of institutions. If sufficient space is not available to house the entire office in one location on the state capitol grounds, the entire office may be housed at one location in the city of Bismarck."

Governor Link vetoed § 1 and, on June 15, 1979, by executive order, created a federal aid coordinator office in the office of the governor, apparently to be headed by the governor himself, and established three divisions within the office (a state planning division, a division of economic opportunity, and a state office of energy management and conservation) to perform the same duties assigned to the federal aid coordinator in SB 2460. Prompted by a request from a federal agency, Governor Link asked Attorney General Olson for an opinion relating to the authority of the state planning division to receive federal funds.

The attorney general responded with an opinion dated June 29, 1979, advising that the governor's partial veto of SB 2460 was void and that SB 2460, in its entirety, became effective on July 1, 1979. Subsequent to this opinion, the governor, taking issue with the attorney general's opinion, issued a new executive order appointing the lieutenant governor to head the office of federal aid coordinator in the office of the governor, and assigning the same duties as would have been assigned to him by the legislative provisions of § 1, SB 2460. The attorney general suggested that the appropriate remedy for the governor, when in disagreement with an official opinion, was to take the matter to court.

On behalf of the State of North Dakota, the governor asks this court to assume its original jurisdiction and to grant the following:

(1) A writ of prohibition preventing the attorney general from "issuing and maintaining" an attorney general's opinion declaring § 1 of SB 2460 a valid law; and

(2) A writ of mandamus requiring the secretary of state to publish the 1979 Session Laws without § 1 of SB 2460.

We issued an alternative writ of prohibition to the attorney general allowing a return to the writ and oral argument on the question whether or not he should be restrained from enforcing his opinion. Because the 1979 Session Laws and a North Dakota Century Code interim supplement had been published, we declined to issue a writ of mandamus to the secretary of state. We were not informed that a further publication of supplements was underway. See footnote 1.

Many issues were raised in the parties' briefs and on oral argument. For the sake of order, they will be addressed under the following major headings:

I. Jurisdiction.

II. Partial Veto.

III. Legislative Authority.

I. Jurisdiction.

Our authority to issue, hear and determine original and remedial writs is derived from Article IV, Section 86, North Dakota Constitution, which provides:

"The supreme court shall be the highest court of the state. It shall have appellate jurisdiction, and shall also have original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. . . ."

Concerning our jurisdiction, the legislature, in § 27-02-04, NDCC, has stated:

"The supreme court may exercise appellate jurisdiction only, except when otherwise specially provided by law or by the constitution. Such court, in the exercise of its original jurisdiction, may issue writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction. In the exercise of its appellate jurisdiction, and in its superintending control over inferior courts, it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. Such court shall exercise its original jurisdiction only in habeas corpus cases and in such cases of strictly public concern as involve questions affecting the sovereign rights of this state or its franchises or privileges." (Emphasis added.)

The power vested in this court to issue original and remedial writs, even upon a proper showing, is discretionary and cannot be invoked as a matter of right, and the court will determine for itself whether or not the case is within its jurisdiction. Burlington Northern v. N. D. Dist. Court, etc., 264 N.W.2d 453 (N.D.1978); State v. Nelson County, 1 N.D. 88, 45 N.W. 33 (1890).

It is well-settled that the power of the court to exercise its original jurisdiction extends only to those cases in which the question presented is Publici juris, wherein the sovereignty of the state, the franchises or prerogatives of the state, or the liberties of its people are affected. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); Gasser v. Dorgan, 261 N.W.2d 386 (N.D.1977); State ex rel. DeKrey v. Peterson, 174 N.W.2d 95 (N.D.1970). The interest of the state must be primary, not incidental, and the public, the community at large, must have an interest or right which may be affected. State ex rel. Vogel v. Garaas, supra; State v. Omdahl, 138 N.W.2d 439 (N.D.1965). See also Burke, The Prerogative Jurisdiction of the Supreme Court, 32 N.D.L.Rev. 199.

Although, ordinarily, the attorney general institutes these proceedings as the legal representative of the interests of the state, his consent or refusal is not necessary in an action in which he is one of the parties defendant, and which concerns his alleged wrongful act and seeks to restrain it. State v. Langer, 46 N.D. 462, 177 N.W. 408 (1919).

In this case the governor contends that the legislative branch has infringed upon the authority granted to him by the North Dakota Constitution to assign duties to the lieutenant governor. The case also involves the extent of the power of the governor to partially veto a bill. The constitutionality of legislative action which appears to change...