Walker v. Omdahl, 9187
| Decision Date | 03 May 1976 |
| Docket Number | No. 9187,9187 |
| Citation | 242 N.W.2d 649 |
| Parties | LeRoy C. WALKER, Petitioner and Appellant, v. Lloyd OMDAHL, Director of Accounts and Purchases, Respondent and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. For reasons stated in the opinion, it is held that the petitioner has sufficient standing to seek a writ of prohibition under Section 32--35--02, N.D.C.C.
2. A law enacted by the Legislature is presumed to be constitutional, unless it is shown that it is manifestly violative of the organic law.
3. The courts will construe statutes so as to harmonize their provisions with the Constitution if it is possible to do so, to the end that they may be sustained.
4. Every presumption is in favor of the propriety and constitutionality of legislation, and improper motives in its enactment are never imputed to the Legislature.
5. For reasons stated in the opinion, it is held that inflationary increases in living expenses of State officials may be provided from State funds by the Legislature as official expenses without violating Section 185 of the State Constitution, and that such expenses may be increased by the Legislature during the term for which officials are elected without violating Section 84 of the State Constitution.
6. For reasons stated in the opinion, it is held that to the extent that Chapter 25, subd. 17 of the 1975 Session Laws, beyond the allowances for expenses in the previous session of the Legislature, exceeds amounts reasonably necessary to cover increases in the cost of living, it is violative of Section 84 of the State Constitution as an allowance of salary which has been increased during the term for which the State officials were elected.
7. This opinion shall have prospective application only and shall apply as of the end of the term to which each incumbent State official was elected.
Vance K. Hill, Bismarck, for petitioner and appellant.
William R. Pearce and William P. Pearce, Sp. Asst. Attys. Gen., Bismarck, for respondent and appellee; argued by William R. Pearce.
On July 31, 1975, a document entitled Petition for Writ of Prohibition in an action entitled LeRoy C. Walker, Petitioner, vs. Ralph Dewing, Director of Accounts and Purchases, Respondent, was filed with the Clerk of District Court of Burleigh County. The petition was signed by counsel and acknowledged to have been read and believed to be true by Walker.
Pursuant to the petition, the trial court ordered the respondent, Ralph Dewing, to appear before the court on the 13th of August, 1975, to show cause, if any, why a writ of prohibition should not issue. A return was made to the petition by Mr. Dewing through counsel by a document dated the 12th day of August, 1975, and filed with the Clerk of the District Court, Burleigh County, on the 14th of August, 1975, which among other things asserted that the petitioner had not pleaded any damage to himself by the acts of the respondent, nor any other fact legally entitling him to bring the proceeding. Thereafter, counsel for the petitioner, on the 13th day of August, 1975, filed an amended petition for writ of prohibition in which the title was changed to read, State of North Dakota, ex rel. LeRoy C. Walker, Petitioner, vs. Ralph Dewing, Director of Accounts and Purchases, Respondent, and a paragraph was added to include the assertion that the Attorney General had been asked to secure such a writ but that he had declined. When Ralph Dewing resigned to assume another State responsibility, Lloyd Omdahl was appointed as Director of Accounts and Purchases and his name was then substituted as a party. This accounts for the change in the title.
Following the submission of briefs and apparently after oral argument and without the receipt of testimony, the trial court rendered its memorandum decision, upholding Ch. 25, subd. 17, 1975 S.L. against the contention that it was unconstitutional, in which it concluded that the application for the writ should be denied. An order to that effect was subsequently executed by the trial court on October 24, 1975, and it is from that order that the petitioner appeals to this court.
We use the word 'apparently' to explain what transpired in the lower court as the appellant has failed to provide us with a transcript of the proceedings, and accordingly we rely in this instance upon the statement of counsel for the petitioner to that effect.
Because the record that has been transmitted to us does not include from the Attorney General a written refusal to secure the writ, we have no evidence before us disclosing that such a refusal was secured. Since the Attorney General is one of the State officials who would be adversely affected should the petitioner be successful, we shall assume that for that reason and perhaps others, he would have declined, and, accordingly, we shall pursue further the inquiry precipitated by this petition as now captioned and stated.
The pertinent part of the amended petition reads:
'I.
'The respondent, Ralph Dewing, is the director of Accounts and Purchases and in that capacity has made and will continue to make quarterly payments of money to certain state officials in accordance with the provisions of Subdivision 17 of Chapter 25 of the 1975 Session Laws. That law states such payments are for expenses and moneys expended in the discharge of official duties of the officers receiving such payments. The law says such amounts are to be paid quarterly by the department of accounts and purchases without such officers filing any itemized voucher or statement. Other laws authorize such officials to submit itemized vouchers for reimbursement of expenses actually incurred in carrying out their official duties. The officers receiving payments are set forth below with the amount of their annual payment set forth across from their office:
'The provisions of Subdivision 17, Chapter 25 of the 1975 Session Laws increase the unvouchered expense payments of those state officials from two to fourteen thousand dollars annually over and above the unvouchered expense payments paid to those officers during 1973 and 1974 as set forth in Chapter 20 of the 1973 Session Laws.
'II.
'That such unvouchered expense payments are in fact salary, which is paid in addition to their official salary, and such payments are being paid in violation of Section 84 of the North Dakota Constitution which provides as follows:
'III.
'That petitioner is a taxpayer and citizen of North Dakota and is a party beneficially interested in this matter, and has no other plain, speedy and adequate remedy in the ordinary course of law.
'IV.
'The Attorney General was asked to secure such a writ and he declined.
'PETITIONER THEREFORE ASKS that this court issue a temporary Writ of Prohibition to the respondent commanding him to refrain from making further unvouchered expense payments to the officials named above and to show cause before this court why he should not be restrained absolutely from making such payments.'
An easy answer to this petition would be that on its face, it discloses no basis for a writ of prohibition.
The long line of decisions of this State involving actions brought by the State on relation of the Attorney General or a private party dating back to early statehood, seem to involve cases in which the petitioner sought to invoke the original jurisdiction rather than the appellate jurisdiction of this court. See, e.g., State ex rel. Walker v. Link, 232 N.W.2d 823 (N.D.1975); State ex rel. Amerada Petroleum Corporation v. North Dakota Public Service Com'n, 79 N.W.2d 297 (N.D.1956); State ex rel. Johnson v. Baker, 74 N.D. 244, 21 N.W.2d 355 (1946); State ex rel. Lucia v. Monson, 55 N.D. 892, 215 N.W. 680 (1927); State ex rel. Shafer v. Lowe, 54 N.D. 637, 210 N.W. 501 (1926); State ex rel. McDonald v. Hanley, 43 N.D. 388, 175 N.W. 569 (1919); State ex rel. Langer v. Kositzky, 38 N.D. 616, 166 N.W. 534 (1918); State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561 (1916); State ex rel. Linde v. Packard, 32 N.D. 301, 155 N.W.2d 666 (1915); State ex rel. Birdzell v. Jorgenson, 25 N.D. 539, 142 N.W. 450 (1913); State v. Nelson County, 1 N.D. 88, 45 N.W. 33 (1890). But see State ex rel. Hughes v. Milhollan, 50 N.D. 184, 195 N.W. 292 (1923).
Whether initiating the proceeding in trial court as opposed to initiating it in this court lessens the requirements of standing we shall not attempt to determine today. That is an issue we shall reserve for another occasion when it is specifically briefed and argued by counsel.
The other decisions which the respondent in this action refers to us for our consideration relate to the standing of the petitioner in actions brought by private parties and not by the State. See, e.g., Fristad v. Sherman, 76 N.W.2d 903 (N.D.1956); Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d...
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