State ex rel. Mason v. Baker

• Decision Date: 25 October 1939
• Docket Number: No. 6618.,6618.
• Citation: 69 N.D. 488,288 N.W. 202
• Parties: STATE ex rel. MASON v. BAKER, State Auditor, et al.
• Court: North Dakota Supreme Court

69 N.D. 488

288 N.W. 202

STATE ex rel.MASON

v.BAKER, State Auditor, et al.

No. 6618.

Supreme Court of North Dakota.

Oct. 25, 1939.

Syllabus by the Court.

1. Under the North Dakota Constitution, the essential functions of government are divided among three departments, the legislative, executive and judicial, these grants are in their nature exclusive, and neither department, as such, can rightfully exercise any of the functions necessarily belonging to another, but this prohibition does not prevent the legislature from authorizing the Supreme Court to exercise such minor executive and ministerial functions as may be necessary or incidental to the performance of its judicial duties.

2. Chapter 110 of the 1939 Session Laws authorizes and requires the Supreme Court to select and employ a Code Revision Commission to annotate the Constitution, to prepare, annotate and index a set of rules of practice and procedure for all courts of the state and to revise, annotate and index the laws of the state. Held, that the duties imposed upon the Supreme Court are of a judicial nature and are not prohibited by section 96 of the State Constitution. Held, further, that the selection and employment by the Supreme Court of members to serve on such Code Commission do not constitute such an appointment as is prohibited by said section 96 of the Constitution. Such commissioners, after qualifying, become agents or officers of the court. (Per Miller and Gronna, District Judges.)

3. The Recodification Act provides that the proposed code shall become effective when enacted by the legislature and that the rules for admission to and disbarment from the practice of law shall become effective when promulgated by the Supreme Court. Held, that reservation of the power of enactmentin the legislature indicates an intention on its part to impose upon the Supreme Court judicial duties only. (Per Miller and Gronna, District Judges.)

4. Every reasonable presumption is in favor of the constitutionality of a statute by the legislature. This presumption is conclusive unless it is clearly shown that the enactment is prohibited by the Constitution of the State or of the United States.

5. Section 9 of Chapter 110, of the 1939 Session Laws, also imposes upon the Code Commission the duty to determine upon the style of printing and binding to be used in the code and to advertise for bids for printing and binding thereof, when adopted by the legislature. Held, that when the Code Commission, as officers of the court, has submitted its report and proposed code to the legislature for adoption, it has performed all the duties of a judicial nature imposed upon it under such act, which it may legally do. (Per Miller and Gronna, District Judges.)

6. Inasmuch as two of the judges of the Supreme Court are of the opinion that that portion of the act not embraced in section 9 thereof does not violate any provision of the State Constitution, it cannot be said that the act is unconstitutional as violative of the State Constitution in view of section 89 of the Constitution, as amended (see Laws 1919, Article 25, p. 503); which provides that in no case shall any legislative enactment or law of the State of North Dakota be declared unconstitutional unless at least four of the judges of the Supreme Court so decide.

Original proceeding in the Supreme Court by the State of North Dakota, on the relation of Nelson A. Mason, against Berta E. Baker, as State Auditor of the State of North Dakota, and John R. Omland, as State Treasurer of the State of North Dakota, for a writ of injunction restraining the respondents from disbursing any of the appropriations provided for in the recodification act.

Application granted in part.

S. E. Ellsworth, of Bismarck, for petitioner.

Alvin C. Strutz, Atty. Gen., and George F. Shafer, Sp. Asst. Atty. Gen., for respondents.

L. J. Wehe, of Bismarck, amicus curiæ.

HARVEY J. MILLER, District Judge.

This is an original proceeding in the Supreme Court on the relation of Nelson A. Mason, praying for a writ of injunction restraining the State Auditor and State Treasurer from disbursing any of the $35,000 appropriation provided for in the Recodification Act, chapter 110 of the 1939 Session Laws. The petition sets forth the petitioner's interest in the matter, the public nature and importance thereof, the consent of the Attorney General to this proceeding, the enactment of said chapter 110, the intention of respondents to proceed thereunder, that such act is unconstitutional and void in that it imposes upon the Supreme Court duties other than judicial and confers upon the judges thereof powers of appointment in violation of section 96 of the State Constitution.

To this petition, respondents interpose a demurrer and motion to dismiss.

No objection is made to the method of proceeding, and the court deems the matter of sufficient importance to warrant its assuming original jurisdiction. State ex rel. Lofthus v. Langer, 46 N.D. 462, 177 N.W. 408;State ex rel. Wallace v. Kositzky, 44 N.D. 291, 175 N.W. 207.

The law in question provides that the Supreme Court is authorized and directed to select and employ not more than three persons, resident of the State and learned in the law, to be known as the Code Revision Commission; that such Commission, acting under the supervision of the Supreme Court, shall continue to date the annotations of the Constitution, prepare, annotate and index a complete set of rules of practice and procedure for all courts of the State, including rules and regulations for admission to and disbarment from practice of law; to revise, annotate and index the laws of the State; that the proposed code shall become effective when enacted by the legislature, and such rules and regulations for admission to and disbarment from practice shall become effective when promulgated by the Supreme Court; that if the proposed Revision Code is enacted by the legislature, such Commission shall continue until the code is printed and bound, and in that connection shall advertise for bids, specify the type of printing and binding and let a contract therefor when approved by the Chief Justice; the Supreme Court shall have control over the making of all contracts, disbursement of all moneys appropriated,and may discharge any commissioner or employe and fill any vacancy.

The section of the Constitution claimed to be violated is number 96: “No duties shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial, nor shall any of the judges thereof exercise any power of appointment except as herein provided.”

[1] In this state, as in all other states of the Union, the essential functions of government are divided among three departments, the legislative, executive, and judicial. This court has early held that these grants were in their nature exclusive and that neither department could exercise any of the functions of the other. State v. Boucher, 3 N.D. 389, 56 N.W. 142, 21 L.R.A. 539. Section 96 also provides that only judicial duties may be exercised by the Supreme Court, but such provision does not alter the general principle embraced in the maxim “Separation of the powers of government.”

It is therefore necessary to consult authorities for the principles to be applied in determining whether the duties conferred upon the Supreme Court by the Recodification Act are not judicial.

“Judicial power determines what the law is, and what the rights of the parties are with reference to transactions already had, and, wherever an act undertakes to determine a question of right or obligation or property, as the foundation upon which it proceeds, such act is to that extent a judicial one.” State ex rel. Miller v. Taylor, 27 N.D. at page 87, 145 N.W. 425, at page 429.

“‘On general principles, those inquiries, deliberations, orders, and decrees which are peculiar to such a department must in their nature be judicial acts.’ * * * The judicial department of government is that department which it was intended should interpret and administer the laws. * * * judicial power is authority vested in some court, officer, or person to hear and determine when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or discretion, in such case, is a judicial act.” State ex rel. Standard Oil Company v. Blaisdell, 22 N.D. 86, at page 95, 132 N.W. 769, at page 773, Ann.Cas.1913E, 1089.

“The distinction between legislative or ministerial functions and judicial functions is difficult to point out. What is a judicial function does not depend solely on the mental operation by which it is performed or the importance of the act. * * * As to what is judicial and what is not seems to be better indicated by the nature of a thing than its definition.” 6 R.C.L. 159.

“Indeed, there is not a single Constitution of any state in the Union which does not practically embrace some acknowledgement of the maxim (separation of the powers of government to be administered by the three arms of government separately), and at the same time some admixture of powers constituting an exception to it.” See, In re Mpls., St. P. & S. Ste. M. R. Co., 30 N.D. 221, at page 226, 152 N.W. 513, at page 515, Ann.Cas.1917B, 1205.

“Notwithstanding the general rule, however, the legislature may clothe judges with powers which are not by their nature either exclusively judicial or nonjudicial, and also with such minor executive and ministerial functions as may be necessary to the proper operation of the system of government established by the Constitution.” 33 C.J. 960; 12 C.J. 874 (376).

“All powers, however, even though not judicial in their nature, which are incident to the discharge by the courts of their judicial functions are inherent in the courts, and the exercise of such powers by the courts is not forbidden by constitutional provision for the division of the powers of...