State ex rel. Spaeth v. Olson ex rel. Sinner, 10878

• Decision Date: 04 January 1985
• Docket Number: No. 10878,10878
• Citation: 359 N.W.2d 876
• Parties: STATE of North Dakota ex rel. Nicholas J. SPAETH, Attorney General, Petitioner, v. Allen I. OLSON ex rel. George SINNER, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 876

359 N.W.2d 876

STATE of North Dakota ex rel. Nicholas J. SPAETH, Attorney General, Petitioner, v. Allen I. OLSON ex rel. George SINNER, Respondents.

Civ. No. 10878.

Supreme Court of North Dakota.

Jan. 4, 1985.

As Amended Jan. 11, 1985.

Nicholas J. Spaeth, Atty. Gen., Bismarck, for petitioner.

Thomas F. Kelsch, Sp. Asst. Atty. Gen., Bismarck, for respondent Allen I. Olson.

Malcolm H. Brown, Sp. Asst. Atty. Gen., Mandan, for respondent George Sinner; appearance by Richard J. Gross, Sp. Asst. Atty. Gen., Bismarck.

ERICKSTAD, Chief Justice.

The petitioner, Nicholas J. Spaeth, acting as Attorney General, has requested this Court to exercise its original jurisdiction to determine "whether defendant Allen Olson or relator George Sinner holds the Office of Governor."

Allen I. Olson was elected Governor of North Dakota during November 1980. He filed his oath of office on January 6, 1981. George Sinner was elected Governor of North Dakota during November 1984. He filed his oath of office on December 31, 1984.

Olson asserts that his four-year term under the provisions of Article V, Section 1, of the North Dakota Constitution expires subsequent to January 5, 1985. Sinner asserts that his four-year term as Governor began on January 1, 1985. Consequently, Olson and Sinner each asserts that he is Governor of this State with all the powers and responsibilities which devolve upon the occupant of that office.

Article VI, Section 2, of the North Dakota Constitution gives this Court appellate jurisdiction and also original jurisdiction with authority to issue, hear, and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. The power vested in this Court to issue original and remedial writs is a discretionary power which may not be invoked as a matter of right, and this Court will determine for itself in each case whether that particular case is within its jurisdiction. State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961).

It is well-settled that the power of this Court to issue writs in the exercise of its original jurisdiction extends only to those cases in which the question presented is publici juris, wherein the sovereignty of the State, the franchises or prerogatives of the State, or the liberties of its people are affected. Gasser v. Dorgan, 261 N.W.2d 386 (N.D.1977). To warrant the exercise of this Court's original jurisdiction the interest of the State must be primary, not incidental, and the public, the community at large, must have an interest or right which may be affected. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); State v. Omdahl, 138 N.W.2d 439 (N.D.1965).

The question before us is whether Olson or Sinner currently holds the office of Governor. In a broader sense, we must resolve the question of the duration of the term of the Office of Governor and when an incoming Governor is authorized to assume the duties of that office.

The stakes in this case are nothing less than a resolution of who currently resides in the seat of government as the head of the executive branch of this State. We consider this a case of great public concern, and, accordingly, we assume original jurisdiction to resolve it on the merits.

Section 44-01-03, N.D.C.C., provides that an elected state officer may assume the duties of his elected office on the "first day of January next succeeding [his] election":

"44-01-03. When state and district officers shall qualify.--Except when otherwise specially provided, all state and district officers shall qualify on or before the first day of January next succeeding their election, or within ten days thereafter, and on said first day of January or within ten days thereafter, shall enter upon the discharge of the duties of their respective offices, ..."

Sinner asserts that under the foregoing statute he assumed the duties of the Office of Governor on January 1, 1985, by qualifying prior to that date. Olson asserts that, notwithstanding the foregoing statute, Sinner is precluded from assuming the Office of Governor on January 1, 1985, because the Certificate of Election issued to Sinner by the Secretary of State provides that Sinner was elected to the Office of Governor for a term of four years "commencing on the first Monday in January 1985." Olson asserts that because Sinner did not directly contest the Certificate of Election he cannot now "collaterally" attack its statement that his term does not commence until the first Monday in January.

Our statutory scheme requires the State Canvassing Board, based upon a vote count, to submit to the Secretary of State its determination of which person has been elected to an office. The Secretary of State is then required, under Section 16.1-15-44, N.D.C.C., to record those results and to transmit to the elected person a Certificate of Election. Regarding the nature of the State Canvassing Board's responsibilities, this Court stated in State ex rel. Sathre v. Byrne, 65 N.D. 283, 258 N.W. 121 (1934):

"Aside from the quasi judicial power to determine the genuineness of the election returns before them, and, in case of apparent mistake in the returns from any county, to take the necessary steps to have such mistakes corrected, the functions and duties of the members of the state board of canvassers are purely ministerial. 20 C.J. 200. See, also, State ex rel. Sunderall v. McKenzie, supra. The state board of canvassers has no authority to determine any question concerning the legality of an election or to pass upon the eligibility of a candidate for office. 20 C.J. 201. Such matters are wholly beyond the power of the state board of canvassers and are questions for determination in some appropriate proceeding in a judicial tribunal." 258 N.W. at 124-125.

See also Stearns v. Twin Butte Public School District No. 1, 185 N.W.2d 641 (N.D.1971). It follows that the Secretary of State's statutory duty to prepare and transmit the Certificate of Election using the results submitted to him by the State Canvassing Board also constitutes a purely ministerial function. The preparation of the Certificate of Election does not require the Secretary of State to make discretionary determinations or to perform any function other than recording the results as submitted by the State Canvassing Board.

The effect of the Certificate of Election is to clothe the person to whom it is issued with a prima facie right to possess and to exercise the functions of the specified office. Byrne, supra. Under our statutory scheme, however, the Certificate of Election is not determinative of the term or dates to which the elected official is entitled to hold office, and we have neither been given nor found any authority to the contrary. There is authority, however, for the position that the law, and not the face of the commission ¹ or Certificate of Election issued to an officer, controls the term of the office. See, Colbath v. Adams, 184 So.2d 883 (Fla.1966); Conley v. Brophy, 207 Ga. 30, 60 S.E.2d 122 (1950). See also 67 C.J.S. Officers, Section 66 (1978).

Application of the rule that a Certificate of Election is not determinative of the term of an office is particularly appropriate in the case before us where the term of the Office of Governor is provided for by constitutional provision [Art. V, Section 1, N.D. Const.], and the date upon which a Governor-elect is entitled to assume that office is provided for by statute [Section 44-01-03, N.D.C.C.]. Accordingly, we conclude that while the Certificate of Election issued to Sinner by the Secretary of State evidences Sinner's prima facie entitlement to assume the Office of Governor it is not determinative of nor relevant to a determination of the term of office or the date upon which the Governor-elect may assume the duties of that office.

Section 44-01-03, N.D.C.C., prior to its amendment in 1975, provided that officers were to qualify "on or before the first Monday of January or within ten days thereafter" and that "on said first Monday of January or within ten days thereafter" were to assume the duties of their offices. The 1975 Legislature amended the provision to provide that officers were to qualify "on or before the first day of January next succeeding their election" and that "on said first day of January or within ten days thereafter" were to assume the duties of their offices. It is readily apparent that the Certificate of Election form issued to Sinner, which refers to the "first Monday in January", was consistent with the pre-1975 version of Section 44-01-03, N.D.C.C., but it is inconsistent with that Section as amended.

In a 1980 Attorney General's opinion, authored by Olson in his capacity as Attorney General, the legislative amendments to Section 44-01-03, N.D.C.C., are discussed. In that opinion, Olson concluded:

"[I]t is our opinion that the powers of the offices of Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Commissioner of Insurance, Attorney General, Commissioner of Agriculture, Public Service Commissioner, and Tax Commissioner devolve upon the persons elected at the November, 1980, general election, at the earliest moment of January 1, 1981, or at the moment the oath of office has been taken, subscribed, and filed, whichever moment is later."

As evidenced by that opinion, Olson apparently believed, or so we could assume, that under Section 44-01-03, N.D.C.C., the time when an elected officer could take office was changed from the first Monday next succeeding his election to the first day of January next succeeding his election.

During November 1984, the Certificate of Election issued to Sinner was signed, as required under Section 16.1-15-45, N.D.C.C., by incumbent Governor Olson and Secretary of State Ben Meier. In addition to being inconsistent with Section 44-01-03, N.D.C.C., the Certificate, by stating that Sinner's term was to commence on the first Monday...