State ex rel. Wenzel v. Langer

• Decision Date: 14 August 1934
• Docket Number: 6253
• Citation: 256 N.W. 194,64 N.D. 744
• Court: North Dakota Supreme Court

256 N.W. 194

64 N.D. 744

STATE OF NORTH DAKOTA EX REL. R.E. WENZEL, a Member of the Workmen's Compensation Bureau of North Dakota, Appellant, v. WILLIAM LANGER, as Governor of the State of North Dakota, and T.J. Clifford, as Special Commissioner, Respondents

No. 6253

Supreme Court of North Dakota

August 14, 1934

Appeal from the District Court of Burleigh County, Buttz Special J. The relator appeals from an order holding that the governor has power to remove a workmen's compensation commissioner for cause.

Affirmed.

George F. Shafer, for appellant.

In the case of statutory offices, such as member of the Workmen's Compensation Bureau, the governor's power to appoint, or to remove or to fill vacancies therein, is dependent upon legislative grant, and subject to such conditions and restrictions as the legislature may impose. State ex rel. Standish v. Boucher, 3 N.D. 389; State ex rel. Langer v. Crawford, 36 N.D. 385, 162 N.W. 710; State ex rel. Wehe v. Frazier, 47 N.D 314, 182 N.W. 545; State ex rel. Shafer v. Rosoff, 59 N.D 154, 228 N.W. 830.

Where a section expressly amendatory of another section of a statute purports to set out in full all it is intended to contain, any matter which was in the original section, but is not in the amendatory section, is repealed by omission. 25 R.C.L. 923; State v. McCafferty, 105 P. 992, L.R.A.1915A, 639; 59 C.J. 1097; Fargo v. Ross, 11 N.D. 369; Ely v. Holton, 15 N.Y. 595; Manheimer Bros. v. Kansas Casualty & Surety Co. (Minn.) 180 N.W. 229; Shadewald v. Phillips (Minn.) 75 N.W. 717; Hoffman v. McNamara (Cal.) 282 P. 990; Ashland Water Co. v. Ashland Co. (Wis.) 58 N.W. 235; United States v. Prentiss, 182 F. 894.

P. O. Sathre, Attorney General, Charles A. Verret, Assistant Attorney General, and S. E. Ellsworth, Special Assistant Attorney General, for respondents.

To effect a repeal the amendatory act must change the substance of amended act and not only the phraseology retaining the same substance. Gull River Lumber Co. v. Lee, 7 N.D. 135; Law v. State (Ala.) 38 So. 798.

The intent of the legislature is the primary object in the construction of statutory amendments. Amendments are to be construed together with the original act to which they relate as constituting one law. 59 C.J. 1093.

When no legislative intent is disclosed to change the law or the legislative power, the general presumption obtains that the codifiers did not intend to change the law as it formerly existed. State ex rel. v. Prater, 48 N.D. 1240, 189 N.W. 334.

The fact that a party proceeds to trial upon a mistaken idea as to the nature of an action and the scope of the issues framed by the pleadings does not deprive him of such relief as is consistent with the real issues and the proof in the case. Logan v. Freerks, 14 N.D. 127, 103 N.W. 426; Fuller v. Fried, 57 N.D. 824, 224 N.W. 668; 20 C.J. 21; 9 R.C.L. 956; Clark v. Heath (Me.) 64 A. 915, 8 L.R.A. (N.S.) 144; Harril v. Davis (C.C.A. 8th) 168 F. 187, 22 L.R.A. (N.S.) 1153.

Christianson, J. Moellring, Nuessle, Burke and Burr, JJ., concur.

OPINION

CHRISTIANSON

This is an appeal from a part of an order made by the district court of Burleigh County in a certiorari proceeding. The facts necessary to an understanding of the questions presented are substantially these: The relator Wenzed was a member of the Workmen's Compensation Bureau. The term of office for which he had been appointed will not expire until January 14, 1935. On October 26, 1933, the respondent, the then Governor of the State of North Dakota, made an order suspending the relator from such office pending a hearing upon certain charges of alleged misconduct and neglect of duty which the Governor (in the order of suspension) stated had been filed with him by the Attorney General. The relator thereupon instituted this proceeding in certiorari. The application for the writ recited the foregoing facts; also that the governor, after the issuance and service of the purported order of suspension had appointed one Pfeifer to serve as a member of the Workmen's Compensation Bureau in place of said relator until the final determination of the removal proceedings. The petition for the writ further alleged that on the 4th day of November, 1933, there was served upon the relator a pretended notice to take testimony and a certain complaint; also that the Governor had appointed one Clifford special commissioner to report the testimony in the removal proceedings. It was further alleged that all these acts of the governor were in excess of his jurisdiction and without authority of and contrary to law. It was asked that a writ of certiorari be issued directing the governor and the said Clifford, special commissioner, to certify to the court a full and true copy and transcript of the record and proceedings had "relating to the purported suspension from office of the said R. E. Wenzel, as a member of the Workmen's Compensation Bureau of North Dakota, relating to the appointment of the said J. E. Pfeifer, as a successor to the said R. E. Wenzel as a member of the said workmen's compensation bureau, and all records and proceedings heretofore taken and relating to the purported proceeding to remove the said R. E. Wenzel, as a member of the said workmen's compensation bureau, that the same may be reviewed by the court and such action taken thereon as the law and justice may require; and that in the meantime, the said defendants and respondents, William Langer, as Governor of the State of North Dakota, and T. J. Clifford, as Special Commissioner, and each of them, be ordered and required to desist from any further proceedings in said matters to be reviewed."

An order to show cause was issued. The parties thereupon entered into a stipulation that a writ of certiorari might issue and that the defendant should make a return containing a record of all the proceedings had in the proceeding to remove the relator from office. It was further stipulated that a hearing be waived and that the district judge, who had been designated to try the case, might make decision pursuant to the memorandum opinion which he had formerly filed. A return was made to the writ of certiorari admitting that the proceedings were had as stated in the application, and alleging that the governor, in making the order of suspension and in appointing the commissioner to take the testimony was acting within the authority conferred upon him by law; and further alleging that the relator had a plain, speedy and adequate remedy at law.

The trial court made its decision as follows:

(1) That the order made by Governor Langer on October 26, 1933, purporting to suspend the relator Wenzel from the office of the workmen's compensation bureau was in excess of the jurisdiction of the governor and hence void.

(2) That the order made by the governor appointing one Pfeifer as successor to the relator Wenzel until the termination of the removal proceedings was in excess of the governor's jurisdiction and hence void.

(3) That the governor had no jurisdiction to proceed with removal proceedings under §§ 685 to 695, Comp. Laws 1913, inclusive.

(4) That the governor did have jurisdiction to hear a removal proceeding under the provisions of the statute creating the workmen's compensation bureau and that the governor might proceed with removal proceedings under that statute.

At the threshold of the case we are met with a motion on the part of the respondents to dismiss the appeal on the ground that the relator had accepted certain benefits under the order sought to be appealed from; that he resumed possession of the office of workmen's compensation commissioner, discharged the duties thereof and received salary as such officer and that consequently he is estopped from assailing any part of the order on appeal. The rule which the respondents seek to invoke is well settled, but in our opinion the facts in this case do not bring it within the rule. Corpus Juris says:

"Subject to the exceptions and qualifications hereafter stated, the general rule is that a party who enforces, or otherwise accepts the benefit of, a judgment, order, or decree cannot afterward maintain an appeal or writ of error to review the same or deny the authority which granted it. A party cannot avail himself of that portion of an indivisible judgment, order, or decree which is favorable to him, and secure its fruits, while prosecuting an appeal to reverse in the appellate court such portions as militate against him. . . . The rule does not apply . . . where the parts of the judgment or decree are separate and independent, and the receipt of a benefit from one part is not inconsistent with an appeal from another, or where the right to the benefit received is conceded by the opposite party or appellant is entitled thereto in any event, so that it could not be denied if the portions of the judgment or decree granting it should be reversed, or in other cases in which the acceptance of the benefit or partial enforcement of the judgment is not inconsistent with an appeal and reversal." 3 C.J. 679, 680.

So far as the record discloses no order had been entered in this case when the governor revoked the order of suspension and the appointment of Pfeifer. The governor's revocation of the order of suspension and of the appointment were attached to and made a part of the return to the writ of certiorari and the order appealed from was not entered until almost a month after the governor had made his written order revoking the order suspending Wenzel and the appointment of Pfeifer. In short, revocation of the order of suspension and the appointment of Pfeifer was an accomplished fact almost a month before the order in question here was entered; and so far as the record discloses the relator was in full...