State ex rel. Mason v. Baker
| Decision Date | 25 October 1939 |
| Docket Number | 6618 |
| Citation | 288 N.W. 202,69 N.D. 488 |
| Court | North Dakota Supreme Court |
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 enactment in 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, for relator.
Laws which assume to impose upon members of the judicial department, powers and functions which are by the Constitution of the state assigned to another department of the government, are unconstitutional. State v. Brill, 100 Minn. 499, 111 N.W. 639.
A legislative enactment is presumed to be constitutional and will be upheld unless it is manifestly violative of the organic law. O'Laughlin v. Carlson, 30 N.D. 213, 152 N.W. 675.
He who alleges a statute to be unconstitutional must be able to point to the particular constitutional provision violated. State v. First State Bank, 52 N.D. 231, 202 N.W. 391.
The powers conferred on the supreme court are exclusively judicial. Langer v. State, ante, 129, 284 N.W. 238; Glaspell v. Jamestown, 11 N.D. 86, 88 N.W. 1023.
That which distinguishes a judicial from a legislative act is that the one is a determination of what an existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of future cases falling under its provisions. Cooley, Constitutional Limitations, § 108.
"Office" is defined as a trust conferred by public authority for a definite purpose and term; a public position to which a portion of the sovereignty of a country, either legislative, executive, or judicial, attaches for the time being and which is exercised for the benefit of the public. 29 Cyc. 1363.
An officer is one participating in the exercise of the powers or receiving the emoluments of a public office. 29 Cyc. 1366.
The power to create an office, unless provision is made by the Constitution, is vested in the legislative department of the government. But where the Constitution has provided the method of filling offices, the legislature may not provide for filling them in any other manner than that directed by the Constitution. 29 Cyc. 1368, 1369.
Alvin C. Strutz, Attorney General, and George F. Shafter, Special Assistant Attorney General, for respondents.
The courts recognize that the separation of the powers of the several departments of the government is far from complete and that the line of demarcation between them is often indefinite. Each of the three departments normally exercises powers which are not strictly within its province. 12 C.J. 803.
The courts have perceived the necessity of avoiding a narrow construction of the state constitutional provision for the division of powers of the government into three distinct departments for it is impractical to view the provision of a doctrinaire. 11 Am. Jur. 881, Constitutional Law.
The distinction between legislative or ministerial functions and judicial functions is difficult to point out. 6 R.C.L. pp. 159, 160; State v. Bates, 96 Minn. 110, 104 N.W. 709.
The Constitution of North Dakota is not to be construed as rigidly classifying all the functions of government as being either legislative, executive or judicial. Minneapolis, St. P. & S. Ste. M.R. Co. v. State Bd. of R. Comrs. 30 N.D. 221, 152 N.W. 513; Kermott v. Bagley, 19 N.D. 345, 124 N.W. 397; Story, Constitution, 359; Winchester R. Co. v. Com. 106 Va. 264, 55 S.E. 692.
Where a statute attempts to vest powers in the judiciary to appoint to office certain administrative or subordinate officers, or officers to assist to carry out court functions, no invalid delegation of legislative authority to the judiciary has been made and there is not usurpation of legislative power by the court. 11 Am. Jur. 938, Constitutional Law.
L. J. Wehe, amicus curiae.
Constitutions are means employed by sovereign people to limit the power of their agents. State ex rel. Miller v. Taylor, 22 N.D. 362, 133 N.W. 1046.
The executive, legislative and judicial departments are but public servants who must exercise their powers in the manner provided by the Constitution. State v. Taylor, 33 N.D. 76, 156 N.W. 561.
The legislature may not confer or impose nonjudicial powers upon the judiciary against the constitutional mandate. Spokane I.E.R. Co. v. Spokane, 75 Wash. 651, 135 P. 636; Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634.
MILLER
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 § 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,...
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