State ex rel. Peterson v. Olson, 9999

• Decision Date: 25 June 1981
• Docket Number: No. 9999,9999
• Citation: 307 N.W.2d 528
• Parties: STATE of North Dakota, ex rel., Robert PETERSON, in His Capacity as State Auditor of the State of North Dakota, and John S. Lesmeister, in his Capacity as State Treasurer of the State of North Dakota, Relators and Petitioners, v. Allen I. OLSON, in his Capacity as Governor of the State of North Dakota, and Dale Moug, in his Capacity as Director of the Accounts and Purchases Department, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 528

307 N.W.2d 528

STATE of North Dakota, ex rel., Robert PETERSON, in His

Capacity as State Auditor of the State of North Dakota, and

John S. Lesmeister, in his Capacity as State Treasurer of

the State of North Dakota, Relators and Petitioners, v. Allen I. OLSON, in his Capacity as Governor of the State of

North Dakota, and Dale Moug, in his Capacity as

Director of the Accounts and Purchases

Department, Respondents.

Civ. No. 9999.

Supreme Court of North Dakota.

June 25, 1981.

Robert O. Wefald, Atty. Gen., argued by Terry L. Adkins, Asst. Atty. Gen.,Bismarck, for relators and petitioners.

Wheeler, Wolf, Peterson & McDonald, Bismarck, for respondents; argued by Albert A. Wolf, Bismarck.

PAULSON, Justice.

The Forty-seventh Legislative Assembly of the State of North Dakota enacted House Bill No. 1648, which provided for an appropriation of $87,000 to the Governor's office in order to defray expenses incurred by the Lieutenant Governor in the performance of additional duties prescribed by the Governor for the biennium beginning July 1, 1981, and ending June 30, 1983. The Legislature declared that House Bill No. 1648 was an emergency measure, to have full force and effect from and after its passage and approval by the Governor on April 1, 1981.

Following the approval of the bill, Governor Allen I. Olson assigned additional duties to Lieutenant Governor Ernest M. Sands on or about April 1, 1981. The duties include assisting in intergovernmental affairs; acting as a liaison between state, county, and city governments; assisting in ceremonial functions; and assisting in economic development programs. On April 24, 1981, the Governor filed an amended employee master record with the Department of Accounts and Purchases in order to increase the Lieutenant Governor's monthly salary by using funds appropriated to the Governor's office by House Bill No. 1648.

On April 30, 1981, Dale Moug, the Director of the Department of Accounts and Purchases, prepared a warrant check drawn upon the funds appropriated to the Governor's office under House Bill No. 1648 and presented the warrant check to Robert Peterson, the State Auditor, and John Lesmeister, the State Treasurer, for their approval and signatures pursuant to § 54-27-08 of the North Dakota Century Code. Both the State Auditor and the State Treasurer refused to approve and sign the warrant check prepared by the Director of the Department of Accounts and Purchases and refused to deliver the warrant check to the payee, the Lieutenant Governor.

On May 1, 1981, the State Auditor and the State Treasurer filed with this court an application for a writ of mandamus to prohibit the Director of the Department of Accounts and Purchases from preparing warrant checks drawn upon the State Treasurer and from utilizing funds appropriated to the Governor's office by House Bill No. 1648 for the purpose of paying the Lieutenant Governor for the expenses he incurs (which apparently includes salary) in performing the additional duties assigned to him by the Governor. In addition, an application for an alternative writ of mandamus was filed with this court which seeks to restrain the Governor from prescribing additional duties to the Lieutenant Governor and to restrain the Director of the Department of Accounts and Purchases from preparing warrant checks utilizing funds appropriated to the Governor's office under House Bill No. 1648 for payment to the Lieutenant Governor. Both the Governor and the Director of the Department of Accounts and Purchases filed returns and amended returns to the application for an alternative writ of mandamus and stated reasons why they should not be restrained in the manner requested in the alternative writ of mandamus.

All of the parties involved in this action urge this court to accept original jurisdiction over this matter, pursuant to Article VI, § 2 of the North Dakota Constitution, because the questions presented are publici juris in that the sovereignty of the State, the franchises or prerogatives of the State, or the liberties of its people are affected. The questions presented by the parties are as follows:

1. Whether or not Article V, § 7 of the North Dakota Constitution impliedly limits the authority of the Governor to prescribe additional duties to the Lieutenant Governor where those duties materially change the functions which the Lieutenant Governor may perform.

2. Whether or not the funds provided for in House Bill No. 1648, when paid to the Lieutenant Governor, conflict with the provisions of § 54-08-03, N.D.C.C., which prescribes an annual salary for the Lieutenant Governor.

3. Whether or not the implementation of House Bill No. 1648 during the Lieutenant Governor's term of office violates Article V, § 14 of the North Dakota Constitution.

4. Whether or not House Bill No. 1648 became effective on April 1, 1981, as an emergency measure; or will become effective on July 1, 1981.

5. Whether or not the Legislature of the State of North Dakota has the authority to appropriate money to one constitutionally mandated office for the benefit of another constitutionally mandated office.

Our authority to exercise original jurisdiction is based upon Article VI, § 2 of the North Dakota Constitution. This authority is discretionary and cannot be invoked as a matter of right. The Supreme Court will determine for itself, on an ad hoc basis, whether or not a particular case is within its original jurisdiction. State ex rel. Link v. Olson, 286 N.W.2d 262 (N.D.1979); State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978). The interests of the State must not be merely incidental but must be of primary importance, and the public must have an interest or right which may be affected. Gasser v. Dorgan, 261 N.W.2d 386 (N.D.1977); State v. Omdahl, 138 N.W.2d 439 (N.D.1965).

The instant case involves matters which are publici juris, i. e., the sovereignty of the State, the franchises or prerogatives of the State, or the liberties of its people are affected. The State Auditor and the State Treasurer pose serious challenges to the authority of the Governor to prescribe additional duties to the Lieutenant Governor, as well as to the authority of the Legislature to appropriate funds to pay the Lieutenant Governor for the additional duties he performs. Because these challenges relate to the very foundation upon which the executive and legislative branches of government rest, i. e., the executive power of the Governor to prescribe duties to the Lieutenant Governor under Article V, § 7 of the North Dakota Constitution; and the authority of the Legislature to pass all laws necessary to carry into effect the provisions of the North Dakota Constitution under Article IV, § 42, we will exercise our original jurisdiction over the matter.

Having concluded that the instant case is an appropriate one for the exercise of our original jurisdiction, we must next determine whether or not a writ of mandamus is a proper instrument for determination of the vital public issues present in this case. Chapter 32-34, N.D.C.C., provides the statutory authority for alternative and peremptory writs of mandamus. Section 32-34-01, N.D.C.C. provides:

"32-34-01. By and to whom writ of mandamus issued. The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is precluded unlawfully by such inferior tribunal, corporation, board, or person."

The State Auditor and the State Treasurer request that this court compel the Governor and the Director of the Department of Accounts and Purchases to perform only those duties required by their respective offices and to refrain from acting outside their authority. In these circumstances, an injunction, rather than a writ of mandamus, is the appropriate remedy. A writ of mandamus is inappropriate because it is issued to compel performance of a ministerial duty by an officer and does not issue to compel action that is discretionary in nature. Secondly, a writ of mandamus seeks to compel the performance of an act which the law regards as a duty. Here, the State Auditor and the State Treasurer seek to restrain the Governor and the Director of the Department of Accounts and Purchases from assigning additional duties to the Lieutenant Governor and then authorizing payment for the duties from a fund authorized by the Legislature for such purposes.

Despite the fact that a writ of mandamus is unavailable, the application for a writ of mandamus requested that this court issue such other relief as may be appropriate. This court, in the exercise of its original jurisdiction, may frame its process as the exigencies require. State ex rel. Loftus v. Langer, 46 N.D. 462, 177 N.W. 408 (1919). A writ of injunction is the correlative of the writ of mandamus. The former issues to restrain action while the latter issues to compel action. State ex rel. McArthur v. McLean, 35 N.D. 203, 159 N.W. 847 (1916). We will issue a writ of injunction if the resolution of the issues in the instant case necessitates such a result.

I

The first question is concerned with whether or not Article V, § 7 of the North Dakota Constitution impliedly limits the authority of the Governor to prescribe additional duties to the Lieutenant Governor. Article V, § 7 of the North Dakota Constitution provides, in pertinent part:

"Section 7. The powers and duties of the lieutenant governor shall be to serve as president of the senate, and he may, when the senate is equally divided, vote on procedural matters, and on substantive matters if his vote would be decisive. Additional duties shall be prescribed by the governor...."

The basis of the State Auditor's and State Treasurer's...