State ex rel. Packard v. Jorgenson

• Decision Date: 07 October 1915
• Citation: 154 N.W. 525,31 N.D. 563
• Parties: STATE ex rel. PACKARD, State Tax Com'r, v. JORGENSON, State Auditor.
• Court: North Dakota Supreme Court

31 N.D. 563

154 N.W. 525

STATE ex rel.

PACKARD, State Tax Com'r,

v.JORGENSON, State Auditor.

Supreme Court of North Dakota.

Oct. 7, 1915.

Syllabus by the Court.

Original writ of mandamus to compel the state auditor to issue salary warrants to the members of the state tax commission.

Held, that chapter 43, Laws 1915, does not directly or indirectly repeal section 5, c. 303, Laws 1911, which, under the holding in State ex rel. Birdzell v. Jorgenson, 25 N. D. 539, 142 N. W. 450, 49 L. R. A. (N. S.) 67, appropriates money for the salaries of such tax commissioners.

Original mandamus by the State, on the relation of Frank E. Packard, as member of the State Tax Commission, against Carl O. Jorgenson, as State Auditor, to compel the issuance of salary warrants. Writ issued.George E. Wallace and H. H. Steele, both of Bismarck, for petitioner. Henry J. Linde, Atty. Gen., and Francis J. Murphy and H. R. Bitzing, Asst. Attys. Gen., for defendant.

BURKE, J.

Petitioner asks mandamus to compel the state auditor to issue salary warrants to the members of the state tax commission. The facts leading up to the controversy, briefly stated, are as follows: Chapter 303, S. L. 1911, creates a permanent, nonpartisan tax commission, defines its powers, and appropriates money for the maintenance thereof. Section 2 of said chapter provides for the appointment by the Governor, with the advice and consent of the Senate, of three persons, the term of one of whom should expire on the first Monday in May, 1915, another whose term should expire May, 1917, and one whose term should expire May, 1919, and upon the expiration of the term of each of said persons a successor be named for a period of six years. Section 5 provides that each of said commissioners shall receive an annual salary of $3,000, payable in the same manner as the salaries of other state officers are paid. By chapter 318, S. L. 1913, amendments were made to sections 6, 7, and 8 of said chapter 303, S. L. 1911; the object of the amendment being to specifically appropriate money for the payment of salaries and other expenses of said tax commission. The 1913 law, however, was vetoed. See State ex rel. Birdzell v. Jorgenson, 25 N. D. 539, 142 N. W. 450, 49 L. R. A. (N. S.) 67.

With the legislation and litigation in this condition, the Legislature of 1915 met. February 8, 1915, Senate Bill No. 261 was introduced under a title stating that its object was to amend and re-enact chapter 303, S. L. 1911. The principal changes proposed were that a tax commissioner should be appointed by the Governor by and with the advice and consent of the Senate for a term of two years to begin on the 1st day of March in each oddnumbered year. This bill was finally passed in the Senate February 23d, and was sent to the House, where it came to a vote, and was finally defeated March 4, 1915, the last day but one of the session. In the meantime there had been introduced the Budget, House Bill No. 488 (now chapter 43, S. L. 1915), entitled:

“An act to appropriate money for the expenses of the executive, legislative and judicial departments of the state government, and for public schools, specifying the amount and time for which such appropriations shall be available, and repealing sections 141, 155, 652 and 654, subdivision 9, of sections 5146 and 5146a of the Compiled Laws of 1913, and all other acts and parts of acts in so far as the same relate to appropriations conflicting herewith, or to appropriations for the same matters or purposes provided for herein.”

This passed the House February 24, 1915, was amended and passed in the Senate March 4, 1915, went to a conference committee, and was finally passed by both the House and Senate March 5th, the last day of the session. Subdivision 18 of section 3 of said chapter 43, S. L. 1915, reads:

+---------------------------------+
                ¦“Tax Commission.                 ¦
                +---------------------------------¦
                ¦Salary, tax commissioner¦$3,000  ¦
                +------------------------+--------¦
                ¦per annum               ¦$6,000.”¦
                +---------------------------------+
                

The state auditor, believing that no appropriation had been made for the salaries of two of the tax commissioners, refused to issue warrants therefor, but offers to issue salary warrant to one commissioner if said commission designate which member shall receive the same.

1. There is not much controversy between the parties, and their contention may be briefly stated as follows: Respondent concedes that under State ex rel. Birdzell v. Jorgenson, supra, an appropriation for the salaries of the three commissioners was provided by chapter 303, S. L. 1911, and that unless the section relating to the salaries has been repealed by the Budget Bill (chapter 43, S. L. 1915), relators are entitled to the relief demanded. He insists that it was the legislative intent that the salary of two of the commissioners be repealed, and that one be paid and that by implication, if not directly, all portions of chapter 303, S. L. 1911, relating to salary were repealed. He relies particularly upon the language found in section 4 of said Budget Bill, wherein it says:

“All other acts and parts of acts in so far as the same relate to appropriations of money in conflict herewith, or to appropriations for the same matters or purposes provided for herein, are hereby repealed.”

We have reached a conclusion favorable to the relator, and we base our conclusion upon the following:

First. It is unreasonable to believe the Legislature...