State ex rel. Lyons v. Guy

• Decision Date: 18 January 1961
• Docket Number: No. 7935,7935
• Citation: 107 N.W.2d 211
• Parties: STATE of North Dakota ex rel. H. W. LYONS v. William L. GUY and Orville Hagen.
• Court: North Dakota Supreme Court

Page 211

107 N.W.2d 211

STATE of North Dakota ex rel. H. W. LYONS v. William L. GUY and Orville Hagen.

No. 7935.

Supreme Court of North Dakota.

Jan. 18, 1961.

Syllabus by the Court

1. The power vested in the Supreme Court by Section 87 of the North Dakota Constitution to issue original and remedial writs is a discretionary power and the Court will determine for itself in each case whether that particular case is within its jurisdiction.

2. An original writ of quo warranto will not be issued at the request of a private relator except in very exceptional cases and only when the Attorney General of the State has been requested to institute the proceedings and has refused to grant the request or has unreasonably delayed action thereon.

3. Where a relator makes an application to file an information seeking the issuance of an original writ of quo warranto this Court may, in exercising its discretion, examine the proposed information to determine whether or not it states a prima facie case for the exercise of original jurisdiction.

4. Payment of the expense of travel of public officers while engaged in official business or reimbursement to them for expenses of such travel constitutes neither salary nor emolument.

5. The purchase of an automobile for the use of the Governor in connection with the performance of his official duties in lieu of payment or reimbursement for the expense of travel merely changed the mode of transportation available to the Governor and did not increase the emoluments of his office.

6. A cardinal rule of constitutional construction is that a constitution must be construed to give effect to the intention of the people who adopted it.

7. Section 39 of the North Dakota Constitution is a restriction upon the members of the Legislature. In order to determine the extent of the restriction the object to be accomplished and any evil sought to be prevented or restrained may be considered in determining the intended extent of the restriction.

8. Chapter 33, Session Laws N.D.1959, providing an appropriation 'for the payment of expenses of certain state officers,' including the Governor, did not increase the emoluments of the office of Governor with respect to a successor elected to the office of Governor who did not become an incumbent until after the appropriation expired as the term emoluments is used in Section 39 of the North Dakota Constitution.

9. Neither the benefits provided under the federal social security system nor the contributions required to be made by the State under the provisions of the federal social security law constitute emoluments within the meaning of Section 39 of the North Dakota Constitution.

Hjellum, Weiss, Nerison & Ottmar, Jamestown, for relator.

Myron H. Bright and Mart R. Vogel, Fargo, and William S. Murray, Bismarck, for respondent William L. Guy.

MORRIS, Judge.

The relator, H. W. Lyons, presented to the Attorney General of the State of North Dakota a written request asking that officer to institute an original quo warranto proceeding in the Supreme Court against William L. Guy and Orville Hagen to determine their respective rights to the office of governor of the State. The Attorney General refused in writing to institute the requested proceedings, whereupon the relator presented to this Court an application as a citizen and resident of the State of North Dakota and an elector and taxpayer thereof for leave to file an information in the nature of quo warranto in the Supreme Court, praying for a determination of the respective rights of the respondents to the office of governor.

The Supreme Court issued its order to show cause, directed to the respondent William L. Guy, why the request of Lyons should not be granted, and required service to be made on both respondents. The respondent Guy filed a return. The respondent Hagen made no appearance. The matter was heard at the time set in the order to show cause. We now proceed to determine whether we should permit the filing of the information.

The pertinent parts of the information set forth that at the general election held throughout the State of North Dakota on November 8, 1960 William L. Guy received the highest number of votes cast for the office of governor, that thereafter a certificate of election was issued to him, and he filed his oath of office as Governor of the State. It is also stated that the respondent Orville Hagen received the highest number of votes for lieutenant governor, was issued a certificate of election, and qualified for that office by filing his oath. The information next sets forth Section 39 of the North Dakota Constitution which provides a restriction on the eligibility of a member of the legislative assembly to be appointed or elected to civil office in the State during the term for which the legislator was elected.

Paragraph 6 of the information sets forth the details of relator's challenge to the right of the respondent Guy to hold the office of governor. We quote it:

'That the Respondent, William L. Guy, was a duly elected, qualified and acting member of the House of Representatives of the North Dakota legislative assembly from District 11, Cass County, North Dakota, for a term of office commencing on the 6th day of January, 1959, and terminating on the 2nd day of January, 1961; that during said term of office the emoluments of the office of Governor of the State of North Dakota were increased as follows:

'(a) By the passage of Senate Bill No. 1, Chapter 1, of the North Dakota Session Laws of 1959 wherein under Subdivision 17, thereof an appropriation in the sum of $4500.00 was made by the North Dakota legislative assembly for the purchase of a car for the use of the Governor of the State of North Dakota and pursuant thereto a car was purchased on or about July 18th, 1959;

'(b) By the passage of Senate Bill No. 33, Chapter 33 of the North Dakota Session Laws of 1959, which provided in part as follows, to-wit:

"The governor * * * shall * * * be paid the sum of $1500.00 for each calendar years of 1959 and 1960 for expenses and moneys expended while engaged in the discharge of official duties, to be paid in quarterly payments by the state auditor without the filing of any itemized voucher or statement * * *.'

and by the appropriation of funds with which to pay the same.

'(c) By passage of Senate Bill No. 195, Chapter 359 of the North Dakota Session Laws of 1959:

'1. Which increased by the sum of $600.00 the remuneration of the Governor of this State upon which Social Security assessments shall be levied.

'2. Increased by one-half of one percent the Social Security tax contribution paid by the State of North Dakota on behalf of the Governor of this State.'

The relator then states that because of the increases provided in the emoluments of the office of governor, as above set forth, during the term of the respondent Guy as a member of the legislative assembly, he was under legal disability and barred from being elected to the office of governor of the State at the election of November 8 and that his purported election is illegal and void. The respondent prays that William L. Guy be ousted from and restrained from occupying and conducting the office of governor and that this Court declare and fix the rights, status and legal relations of the respondents Guy and Hagen to the office of Governor of the State.

In resisting the relator's application for leave to institute proceeding in the nature of quo warranto, the respondent urges two grounds: first, that the relator is acting in an individual capacity and as such has no right nor should this Court permit him to institute quo warranto proceedings in the Supreme Court to challenge the respondent's right to the office of governor; second, that none of the three charges set forth in Paragraph 6 of the proposed information constitutes a violation of Section 39 of the Constitution and therefore the information states no grounds for the institution or maintenance of quo warranto proceedings challenging the right of the respondent Guy to hold office.

In support of the first ground of his resistance to the filing of the information the respondent urges that the Attorney General of the State of North Dakota in his official capacity represents the State and its people, and that the relator who does not show a special interest, such as being a claimant to the office of governor, but appears only as a citizen, resident, elector and taxpayer of the State, should be regarded as an intermeddler and not one who is entitled to maintain quo warranto proceedings.

Section 87 of the North Dakota Constitution vests in the Supreme Court power to issue original and remedial writs. Among those enumerated is the writ of quo warranto. It is not contended that this Court does not have the power to issue a writ when such a proceeding is instituted by a proper party.

In State ex rel. Conrad v. Langer, 68 N.D. 167, 277 N.W. 504, 514, we said with respect to the exercise of original jurisdiction that:

'Inasmuch as an original proceeding in this court can be maintained only where the matter involved affects the sovereign rights of the state or its franchises or prerogatives, or the liberties of the people, it naturally follows that ordinarily the application to this court for a prerogative writ should be made by the Attorney General as the chief law officer of the state. However, the failure of the Attorney General to make such application is not a bar; and where the Attorney General refuses to institute the proceeding, the court, when the facts warrant, may and will grant a private relator leave to institute it. But in no case (except in a habeas corpus proceeding) can or will the original jurisdiction be exercised on the application of a private relator unless the Attorney General has been requested to move and has refused or unreasonably delayed so to do.'

The power vested in the Supreme Court by Section 87 of the Constitution to issue original...