State ex rel. Birdzell v. Jorgenson

142 N.W. 450 | N.D. | 1913

Bruce, J.

(after stating the facts as above). The case before us is clearly one which involves “the prerogatives, rights, and franchises of the state government,” and is therefore one in which it is not only the right, but the duty, of this court to exercise original jurisdiction. Constitution of North Dakota, §§ 86, 87; Eev. Codes 1905, §§ 6751, 7822; State ex rel. Goodwin v. Nelson County, 1 N. D. 88 at 101, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N. W. 33 ; State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234 ; State ex rel. Wineman v. Dahl, 6 N. D. 81, 34 L.R.A. 97, 68 N. W. 418 ; State ex rel. Plain v. Falley, 8 N. D. 90, 76 N. W. 996 ; State ex rel. Wolfe v. Falley, 9 N. D. 450, 83 N. W. 860 ; State ex rel. Fosser v. Lavik, 9 N. D. 461, 83 N. W. 914 ; State ex rel. Granvold v. Porter, 11 N. D. 309, 91 N. W. 944 ; Anderson v. Gordon, 9 N. D. 480, 52 L.R.A. 134, 83 N. W. 993 ; State ex rel. Buttz v. Liudahl, 11 N. D. 320, 91 N. W. 950 ; State ex rel. Byrne v. Wilcox, 11 N. D. 329, 91 N. W. 955 ; State ex rel. Walker v. McLean County, 11 N. D. 356, 92 N. W. 388 ; Duluth Elevator Co. v. White, 11 N. D. 534, 90 N. W. 14 ; State ex rel. Mitchell v. Larson, 13 N. D. 420, 101 N. W. 315 ; State ex rel. Rusk v. Budge, 14 N. D. 532, 105 N. W. 724 ; State ex rel. McDonald v. Holmes, 16 N. D. 457, 114 N. W. 367 ; State ex rel. Frich v. Stark County, 14 N. D. 368, 103 N. W. 913 ; State ex rel. Madderson v. Nohle, 16 N. D. 168, 125 Am. St. Rep. 628, 112 N. W. 141 ; State ex rel. Erickson v. Burr, 16 N. D. 581, 113 N. W. 705 ; State ex rel. Steel v. Fabrick, 17 N. D. 532, 117 N. W. 860 ; State ex rel. Cooper v. Blaisdell, 17 N. D. 575, 118 N. W. 225 ; State ex rel. McCue v. Blaisdell, 18 N. D. 55, 24 L.R.A. (N.S.) 465, 138 Am. St. Rep. 741, 118 N. W. 141 ; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360 ; State ex rel. Miller v. Norton, 20 N. D. 180, 127 N. W. 717 ; State ex rel. Williams v. Meyer, 20 N. D. 628, 127 N. W. 834 ; State ex rel. Miller v. Miller, 21 N. D. 324, 131 N. W. 282 ; State ex rel. Watkins v. Norton, 21 N. D. 473, 131 N. W. 257 ; State ex rel. Miller v. Taylor, 22 N. D. 362, 133 N. W. 1046 ; State ex rel. Shaw v. Thompson, 21 N. D. 426, 131 N. W. 231 ; Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 426.

It is a case which is honestly and properly brought by all of the parties to the litigation. It is urged by the tax commissioners, because the law intrusts them with the performance of public duties of great importance which require adequate appropriations for their performance. It is contested by the state auditor, because, as a public official, it is his sworn duty to rigidly and fearlessly perform the duties of his office, and to only audit those accounts for which, in his opinion, valid appropriations have been made. It is his duty to exercise his sound discretion and his best judgment, and to refuse to audit accounts whenever he entertains any reasonable doubt of their validity. It is in the courts alone, that matters such as these can be finally and definitely settled. Ours is a government by law, and by law alone.

The first contention of the petitioners is that § 5 of chapter 303 of the Laws of 1911, and which provides that “each commissioner, within thirty days after notice of his appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the secretary of state, the oath of office prescribed by law. Each of said commissioners shall receive an annual salary of $3,000, payable in the same manner that salaries of other state officers are paid,” makes a continuing appropriation of $9,000 annually for the payment of such salaries, and that it is the duty of the state auditor to draw warrants accordingly without further legislative expression upon the subject.

We think they are correct in this contention. Section 391 of the Code of 1905 provides that “there is annually appropriated out of any funds in the state treasury not otherwise appropriated, such sums as may be necessary to pay tbe salaries of tbe various state officers.” The tax commissioners are intrusted by chapter 303 of the Laws of 1911 with important administrative and supervisory functions. They have the power, and it is their duty to exercise supervision over the assessments, and tax laws of the state, over assessors, boards of review, and boards of equalization; to confer with, and advise, and direct assessors and boards; to direct the proceedings, actions, and prosecutions to be instituted to enforce the laws relating to the penalties, liabilities, and punishment of public officers, persons, and officers or agents of corporations for failure or neglect to comply with the provisions of the statute governing the return, assessment, and taxation of property, and to cause complaints to be made against assessors, members of boards of review and of county boards of equalization, in the case of official misconconduct; to require various public officers to report information as to the assessment of property, the collection of taxes, the receipts from licenses, and the expenditures of public funds; to inquire into the system of accounting of public funds in townships, villages, and counties, and to make needed recommendations; to require individuals, partnerships, companies, associations, and corporations to furnish information which may be needful to enable the commission to ascertain the value and relative burdens borne by all kinds of property in the state; to carefully examine into all cases where evasion or'violation of the laws for assessment and taxation of property is alleged or discovered; to investigate the tax systems of other states and other countries, and to formulate and recommend such legislation as may be expedient; to consult and confer with the governor of the state upon the subject of taxation, the administration of the laws in relation thereto, and to furnish him from time to time with such assistance and information as he may desire; to assess at their actual value all light, heat, and power companies doing business in this state; to consult and confer with the state board of equalization, and to aid it in the discharge of its duties; to review the assessments made by the different assessors and as equalized by the county boards of equalization, and to order a reassessment of property where the assessment made seems grossly unjust; to require local assessors to place upon the assessment rolls property which may have escaped taxation during the previous six years. They, in short, have administrative and advisory powers which in importance are equal to those of any other boards or officers of the state. In the case of Parks v. Soldiers’ & Sailors’ Home Comrs. 22 Colo. 86, 48 Pac. 542, it was. held that “every officer of this state who holds his position by election, or appointment, . . . and whose duties are defined by statute, and are in their nature continuous and relate to the administration of the affairs of the state government, and whose salary is paid out of the public funds, is a public officer of either the legislative, executive, or judicial department of the government,” and that his salary is therefore a preferred claim against the state. See also People ex rel. Hegwer v. Goodykoontz, 22 Colo. 507, 45 Pac. 414. In 36 Cyc. 852, we find the following: “State officers are those whose duties concern the state at large or the general public, although exercised within defined limits, and to whom are delegated the exercise of a portion of the sovereign power of the state. They are in a . . . sense those whose duties and powers are co-extensive with the state, or not limited to any political subdivisions of the state, and are thus distinguished from municipal officers, strictly, whose functions relate exclusively to the particular municipality, and from county, city, town, and school-district officers. . . . The enumeration by the [state] Constitution of certain officers as constituting the executive department of the state does not necessarily deprive the legislature of the power to create other executive offices, although it cannot abolish any of those created by the Constitution.” The authorities, in fact, are overwhelming in support of this holding, and we are quite clear that the tax commissioners of North Dakota are state officers. See Mechem, Pub. Off. chap. 1, also § 35, chap. 2; Throop, Pub. Off. § 34, 10; 36 Cyc. 852; State ex rel. Clyatt v. Hooker, 39 Pla. 477, 22 So. 721, 63 Am. St. Rep. 174, and note ; He Advisory Opinion to Governor, 49 Fla. 269, 39 So. 63 ; People ex rel. Foley v. Montez, 48 Colo. 436, 110 Pac. 639 ; Blue v. Tetrick, 69 W. Va. 742, 72 S. E. 1033 ; Blue v. Smith, 69 W. Va. 761, 72 S. E. 1038.

That the provisions of § 5 of chapter 303 of the Laws of 1911, which fix the joint salary of the commissioners at $9,000 per annum, and provides that it shall be payable “in the same manner that salaries of other state officers are paid,” taken in conjunction with § 391 of the Code of 1905, which appropriates annually out of “the funds in the state treasury not otherwise appropriated, such sums as may be necessary to pay the salaries of the various state officers,” constitutes a valid appropriation for their said salaries, is also quite clear. In the ease of State ex rel. McDonald v. Holmes, 19 N. D. 286, 291, 123 N. W. 884, we said: “From a careful consideration of the authorities on the subject, and of the terms of our Constitution, we think an appropriation in the sense that that word is used in our Constitution is the setting apart from the public revenue of a definite sum of money for the specified object, in such a manner that the officials of the government are authorized to use the amount so set apart, and no more, for that object.” Who would contend that there is any indefiniteness in the paragraph of the act of 1911, which provides that “each of said commissioners shall receive an annual salary of $3,000, payable in the same manner that salaries of other state officers are paid ?” According to the great weight of authority, this section in itself makes an appropriation, and we so hold. An “appropriation, as applicable to the general fund in the treasury,” says the supreme court of Indiana in the case of Ristine v. State, 20 Ind. 328, “may, perhaps, be defined to be an authority from the legislature given at the proper time, and in legal form, to the proper officers to apply sums of money out of that which may be in the treasury, in a given year, to specified objects or demands against the state.” In the case of Thomas v. Owens, 4 Md. 189, it was held that a constitutional provision creating officers and fixing salaries amounted to an appropriation for those salaries. The court, in passing upon the case, held that the people had given their consent to the payment of the salary in question, and laid special emphasis upon the words, “shall receive.” It is true that in that case the salaries were salaries fixed by the Constitution, but no distinction can be made upon this ground. It is perfectly true, as held in the case of Ristine v. State, 20 Ind. 337, that a promise by the government to pay money is not an appropriation, nor does a duty on .the part of the legislature to make an appropriation constitute such; nor does the promise to make an appropriation, nor the pledge of the faith of the state, nor the usage of paying money in the absence of an appropriation. There must in every case be an appropriation; that is, a .direction. That is, to use the language of the Holmes Case, “the setting apart from the public revenue of a definite sum of money for the specified object in such a manner that the officials of the government are authorized to use the amount so set apart, and no more, for that object.” But there is such a setting apart in the case at bar. We have thoroughly examined and are fully conversant with the history of the law upon this subject, with the origin of the rule requiring appropriations, and with the jealousy with which the right of the legislature to control the same has been guarded; but we have yet to leam that either the English Parliament or the American legislature has ever been jealous of itself. The reason for requiring legislative appropriations is to be found in the extravagance and prodigality and favoritism of the English Kings, who, for purposes of their own, would squander the revenues, and in the desire of the Parliament to control those Kings, not merely in their expenditures, but in their intrinsic powers, by themselves controlling the purse strings of the state. In this case, however, the legislature has expressed its wish and its desire. It has specified a definite amount to be paid, and directed its payment ■by the proper officials and in a regular manner. It has had control of the purse strings, and it has itself loosened them. We are quite satisfied, indeed, that even in the absence of § 391 of the Code of 1905, the legislature made a valid appropriation as far as the salaries of the tax commissioners were concerned. Not only is the appropriation in our minds clearly made, but the rule applies in this case which is laid down by the supreme court of Indiana in the case of Carr v. State, 127 Ind. 209, 11 L.R.A. 370, 22 Am. St. Rep. 625, 26 N. E. 780, where the court said: “It is sufficient if the intention to make the appropriation is clearly evinced by the language employed in the statutes upon the subject, or if it is evident that no effect can possibly be given to [such] a statute unless it be construed as making the necessary appropriation.” So, too, we have in North Dakota a statutory provision which is all controlling and full of suggestion. Section 101, paragraph 17, provides that “it is the duty of the state auditor to draw warrants on the state treasurer for the payment of money directed by law to be paid out of the treasury,” and where such provisions are to be found the courts have, in many instances, held provisions which merely fix salaries as constituting appropriations. See Keynolds v. Taylor, 43 Ala. 420. They have, of course, been much more ready to do so in cases such as that before us, where the salary has been directed to be paid as the salaries of all other state officers, and especially where there is a general appropriation upon the statute books for the payment of the salaries of such officers. “In the ease at bar, however,” says the supreule court of Colorado in tbe case of People ex rel. Hegwer v. Goodykoontz, 22 Colo. 507, 45 Pac. 414, “there is no intention to make the salary of the inspector [the] subject to further legislation to be inferred from anything expressed in the act. It reads: ‘Said inspector shall receive an annual salary of two thousand five hundred ($2,500) dollars and mileage at 10 cents per mile, payable the same as other officers of the state;’ and by other acts then and now in force, other state officers are paid in monthly instalments at the end of each and every month, the auditor being required upon request to draw warrants upon the state treasurer for such salaries. Nothing is left indefinite and uncertain under these provisions. . . . The object of the constitutional provision inhibiting the payment of money from the state treasury, except by an appropriation made by law, etc., is to prohibit expenditures of the public funds at the mere will and caprice of the Crown or those having the funds in custody, without direct legislative sanction therefor; but no such evil need be feared, where, as in this case, the salary of the officer is fixed, together with the time and method of his payment. And we conclude that the act creating the office of state boiler inspector, and fixing his salary, when considered- in connection with other statutes designating the time, mode, and manner of payment, constitutes a continuous appropriation for such salary, and that no further legislative sanction is necessary to authorize the proper officers to pay the same.” See also Harrison v. Horton, 5 Cal. App. 415, 90 Pac. 716, 718. In the case of State ex rel. Noonan v. King, 108 Tenn. 271, 67 S. W. 812, the following was held to be an appropriation: “The salary of said inspector shall be $1,200 per annum, payable monthly on warrant of the comptroller, as other salaries are paid.” In the case of State ex rel. Davis v. Eggers, 29 Nev. 469, 16 L.R.A. (N.S.) 630, 91 Pac. 819, the following was held to be an appropriation: “The chairman of such commission shall receive as compensation for his services, to be paid out of the treasury of the state of Nevada, the sum of $2,500 per annum, payable in equal monthly instalments upon the first day of each and every month.” See also State ex rel. Brainerd v. Grimes, 7 Wash. 191, 34 Pac. 833 ; Shattuck v. Kincaid, 31 Or. 379, 49 Pac. 758 ; State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 Pac. 125.

We are thoroughly satisfied that § 391 of the Revised Codes of 1905, which provides that “there is hereby annually appropriated out of any funds in tbe state treasury not otherwise appropriated, such sums as may be necessary to pay the salaries of the various state officers,” is still in force, and that it has not been repealed by chapter 41 of the Session Laws of 1913. The act of 1913 is entitled: “An Act to Appropriate Money for the Expenses of the State Government and for Other Purposes; to repeal § 1737 of the Eev. Codes of 1905, as amended by chapter 1 of the Session Laws of 1911; chapter 73 of the Session Laws of 1909; and chapter 195 of the Session Laws of 1909 ; chapter 284 of the Session Laws of 1911, and §§ 1295 and 1298 of the Eev. Codes of 1905; § 1296 of the Eev. Codes of 1905, as amended by chapter 31 of the Session Laws of 1909, so far as the same relates to appropriations; chapter 186 of the Session Laws of 1907; §§ 1287, 1288, and 1289 of the Eev. Codes of 1905, as amended in chapter 148 of the Session Laws of 1909; chapter 175 of the Session Laws of 1911; and to repeal all acts in so far as they conflict with the provisions of this act; specifying the amount and time for which such appropriations shall be available, and providing the manner in which the appropriations herein made shall be paid.” In the body of the act, appropriations are made for the elected state officers and for the various appointed officers, perhaps all with the exception of the tax commissioners. But that the act was not intended to be exclusive or to repeal § 391 of the Eev. Codes of 1905 before referred to, seems quite apparent from two considerations. The first of these is that the section is not specifically repealed. The second is that the emergency clause of the act seems to intimate that a general appropriation is merely attempted, and not necessarily thought to have been or intended to be accomplished. If the legislature of 1913 had intended to repeal § 391, it seems quite apparent that they would have done so specifically. They specifically repealed a number of other sections of the statute. Section 391 would, it seems, have been the first statute that they would have considered, as it pertained to a general appropriation, and they themselves were legislating in regard to a general appropriation. The fact that they did not repeal it specifically is full of significance. In the case of State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 Pac. 125, we have an almost identical case. In that case the statute was as follows: “The state examiner shall receive an annual salary of $2,000, and a contingent fund of not to exceed $1,400 for the incidental expenses of his office, which same shall be paid by the treasurer of the state in the same manner as other salaries and expenses of state officers are paid.” It appears from an examination of the opinion, that at one time a provision had been made for the payment of the state examiner in the general appropriation bill, but that the last legislature had omitted the public examiner from such bill. The court nevertheless granted a pre-emptory writ of mandamus, directing the auditor to issue warrants in payment of relator’s claim. We are also of the opinion that whether § 391 is repealed or not, § 5 of chapter 303 of the Laws of 1911 of and in itself makes a valid appropriation for the salaries of such officers. We have followed, in short, the language of this court in the case of State ex rel. McDonald v. Holmes, 19 N. D. 286, 291, 123 N. W. 884, when it said: “From a careful consideration of the authorities on the subject and of the terms of our Constitution, we think an appropriation, in the sense that that word is used in our Constitution, is the setting apart from the public revenue of a definite sum of money for the specified object, in such a manner that the officials of the government are authorized to use the amount so set apart, and no more, for that object. . . . Generally, the fixing of a salary of a state official is held to be an appropriation.” Humbert v. Dunn, 84 Cal. 51, 24 Pac. 111 ; Reynolds v. Taylor, 43 Ala. 420 ; State v. Bordelon, 6 La. Ann. 68 ; Nichols v. The Comptroller, 4 Stew. & P. (Ala.) 154 ; State ex rel. Wade v. Kenney, 10 Mont. 485, 26 Pac. 191 ; State ex rel. McDonald v. Holmes, 19 N. D. 286, 123 N. W. 884 ; Contra, State ex rel. Brown v. Weston, 6 Neb. 16 ; Baggett v. Dunn, 69 Cal. 75, 10 Pac. 125.

Following the same line of reasoning and of authority, we are also satisfied that chapter 303 of the Laws of 1911 not only in itself makes ,a definite and distinct annual appropriation of $9,000 for the salaries of the commissioners, but definite and distinct annual appropriations of $2,400 for the salary of their secretary, $6,000 for clerks, stenographers, and experts, $4,500 for office supplies and traveling expenses, and $3,000 for miscellaneous expenses, such as witness fees, officers’ fees in serving summonses and subpoenas, and the cost of depositions. We find, indeed, such an overwhelming weight of authority, of reason, and of sound public policy in favor of petitioners’ position, that we can entertain no doubt in relation thereto. It is, of course, well established that a mere promise to pay does not in itself make an appropriation. Ristine v. State, 20 Ind. 328 ; State ex rel. Board of Comrs. v. Ristine, 20 Ind. 345 ; Newell v. People, 7 N. Y. 9 ; Sunbury & E. R. Co. v. Cooper, 33 Pa. 278. There is a wide distinction, however, between a | promise on the part of a state to pay a third party, and the fixing of defijnite amounts as salaries and other expenses to be paid, and a direction to its disbursing and auditing officer to pay them so that the machinery of government may continue to be operated. “It does not . . . follow that because no claim can be enforced where there is no appropriation, the appropriation must be made in a particular form or in express terms. It is sufficient if the intention to make the appropriation is clearly evinced by the language employed in the statutes upon the subject, or if it is evident that no effect can possibly be given to a statute unless it be construed as making the necessary appropriation.” Carr v. State, 127 Ind. 204, 11 L.R.A. 370, 22 Am. St. Rep. 624, 628, 26 N. E. 778. “A direction to the officers to pay money out of the treasury upon a given claim, or for a given object, may, by implication, include in the direction an appropriation.” Eistine v. State, and Carr v. State, supra. “If the salary of a public officer is fixed, and the time of payment prescribed by law, no special annual appropriation is necessary to authorize the auditor to issue his warrant for its payment.” Reynolds v. Taylor, 43 Ala. 420 ; Nichols v. The Comptroller, 4 Stew. & P. (Ala.) 154 ; Thomas v. Owens, 4 Md. 189 ; Green v. Purnell, 12 Md. 329 ; State ex rel. Buck v. Hickman, 10 Mont. 497, 26 Pac. 386 ; State ex rel. Roberts v. Weston, 4 Neb. 216 ; Carr v. State, 127 Ind. 204, 11 L.R.A. 370, 22 Am. St. Rep. 624, 629, 26 N. E. 778. “Under our system of government,” says the supreme court of Maryland in the case of Thomas v. Owens, 4 Md. 189, 225, “its powers are wisely distributed to different departments; each and all are subordinate to the Constitution, which creates and defines their limits; whatever it commands is the supreme and uncontrollable law of the land. This is not denied directly, although it is inferentially, substantially, and practically. It is said that inasmuch as the 20th section of the 3d article of the Constitution declares, ‘No money shall be drawn from the treasury of the state, except in accordance with an appropriation made by law’ that an act of Assembly must precede the withdrawal, and inasmuch as none such has been passed covering the period antecedent to the 1st of January, 1852, there is, therefore, no appropriation, by law for that time. To this reasoning we cannot yield our consent. In the construction of any instrument the whole paper ought to be considered, that the will of its framers may be truly and accurately ascertained; the objects contemplated and the purposes to be subserved should be constantly kept in view, and the language used interpreted in reference to the manifest intent. Now what could have been the purpose of the clause in the Constitution to which we have referred ? It was obviously inserted to prevent the expenditure of the people’s treasure without their consent, either as expressed by themselves in the organic law, or by their representatives in constitutional acts of legislation. To use the language of Justice Story (Yol. 3, Contr. § 1342), its purpose ‘is to secure regularity, punctuality, and fidelity in the disbursements of the public money;’ and, as said by Judge Tucker in his commentaries (1 Tucker’s Bl. Com. Appx. 362) : ‘All the expenses of government being paid by the people, it is the right of the people, not only not to be taxed without their own consent, or that of their representatives freely chosen, but also to be actually consulted upon the disposal of the money.’ Such a provision, says the same learned writer, ‘forms a salutary check, not only upon the extravagance and profusion in which the executive department might indulge itself, and its adherents and dependents; but also against any misappropriation which a rapacious, ambitious, or otherwise unfaithful executive might be disposed to make. In those governments where the people are taxed by the executive, no such check can be interposed. The prince levies whatever sums he thinks proper; disposes of them as he thinks proper; and would deem it sedition against him and his government if any account were required of him, in what manner he had disposed of any part of them. Such is the difference between governments where there is responsibility and where there is none.’ These being the purposes and objects of the clause, the question is: Have the people given their consent to the payment of the salary of the Comptroller? That they have done so is palpably manifest. They have said, he ‘shall receive an annual salary of $2,500.’ They have not merely said he may claim such a sum, but, emphatically, that he ‘shall receive’ it. It is impossible for human language to be less ambiguous or more positive. The people, in their organic law — which is paramount to all other law — have not only given their consent, but they have imperatively issued their commands, that the particular officer 'shall receive’ it. How is their will obeyed, if it be within the power of the treasurer, or anyone else, to withhold it from caprice, unfaithfulness to duty, or from mistaken judgment? To allow of such a power in that officer would be to put him above the Constitution, -whose creature he is. It would be to invest him with authority to annul the sovereign will; in fact, to stop the wheels of govern- • ment and reduce things into the wildest confusion. The Constitution lhas said the officer ‘shall receive’ his salary, and this fiat of the supreme will is not to be nullified by the mere ipse dixit of a mere ministerial officer; for such, and none other, is the treasurer.” .In this statement is to be found the whole gist of the question, and the arguments therein adduced and the conclusions to be derived therefrom, are, in our minds, unanswerable. It is true that the opinion is an old one, but it has borne the scrutiny of sixty years, has been cited with approval over and over again, and has been but rarely criticized. It is true that in the Maryland case quoted from, the salaries of the officers were fixed by the Constitution, but this makes no difference. Under the American system of government the entire sovereignty of the people is vested in the legislature, and that sovereignty is supreme except as controlled by the state or Federal Constitutions. The state and Federal Constitutions contain no limitations in the matters before us, and we have therefore the sovereign people speaking through the voice of the legislature. It is not for this court or for any other officer to disobey their command. See State ex rel. Henderson v. Burdick, 4 Wyo. 272, 24 L.R.A. 266, 33 Pac. 125, 127.

We, of course, realize that the cases cited are opposed to the ruling in Myers v. English, 9 Cal. 341, and State ex rel. Brown v. Weston, 6 Neb. 16. We are, however, also aware of the fact that these cases have not been generally followed, and are opposed to the weight of authority. See Humbert v. Dunn, 84 Cal. 57, 24 Pac. 111. We also believe that their reasoning is untenable, as it fails entirely to recognize the fact that it was the royal and executive expenditures and extravagances that the constitutional provisions sought to check and to prevent, and not the exercise of the sovereign power of the legislative assembly or of the people whom these legislative assemblies represented. We are aware of the opinion in People ex rel. Richardson v. Spruance, 8 Colo. 530, 9 Pac. 628. The facts of that case, however, are materially different from those in the case at bar, and even if the opinion is in conflict with the ideas which we herein express, that opinion has been modified, if not overruled, by Mullen v. McKim, 22 Colo. 468, 45 Pac. 416. We are also aware of the case of Leddy v. Cornell, 52 Colo. 189, 38 L.R.A.(N.S.) 918, 120 Pac. 153, Ann. Cas. 1913C, 1304, which holds that a provision providing for the appointment of a secretary who shall be paid a salary not to exceed $1,800 a year and his necessary traveling expenses does not constitute a continuous appropriation, as the amount is not definitely fixed. The case, however, is not a well-considered case, and the point under discussion is merely brushed aside. The distinction made is at any rate too technical for us to follow. In the statute before us the limits of the expenditures, both for the salary of the secretary and the expenses of operating the commission, are definitely fixed; and this, we think, is sufficient. It has been the constant practice in this state to appropriate “not to exceed” certain amounts, or certain amounts, “or so much thereof as may be necessary,” and for us to follow the Colorado case last cited would be not only to invalidate many useful appropriations, but to prevent all economy in administration. It would tend to maximum appropriations and the reaching of this limit and maximum by those intrusted with the disbursements of the funds and the management of the various state institutions and departments, no matter whether the services or supplies could be had or purchased at a smaller sum or the needs of the institutions or departments actually required the full expenditure or not. So, too, as pointed out in the case of State ex rel. Henderson v. Burdick, supra, the decisions of the California courts on the subject of appropriations have been entirely inconsistent, and lose much of their authority by their absolute irreconcilability. See also note to Carr v. State, 127 Ind. 204, 11 L.R.A. 370, 26 N. E. 778, which is found in 22 Am. St. Rep. 628. In the Burdick Case, indeed, the supreme court of Wyoming, after thoroughly reviewing the decisions of the supreme court of California, as well as those of other states, held that an act which provided that “the state examiner shall receive an annual salary of $2,000, and a contingent fund of not to exceed $1,400, for the incidental expenses of his offices, which same shall be paid by the treasurer of the state in the same manner as other salaries and expenses-of state officers are paid,” operated as an appropriation act, and did not require any other legislation or a special appropriation at each regular session of the legislature to keep it alive. The opinion is a well-considered one, and is well worthy of our consideration.

We are also aware of the case of State ex rel. Norfolk Beet-Sugar Co. v. Moore, 50 Neb. 88, 61 Am. St. Rep. 538, 69 N. W. 373. In that case, however, there was no certainty either as to the expenditure oías to the limits to the fund or attempted appropriation. Where such certainty has existed the Nebraska courts have in several cases held that appropriations have been made. See Be Groff, 21 Neb. 647, 59 Am. Rep. 859, 33 N. W. 426 ; State ex rel. Lanham v. Babcock, 24 Neb. 787, 40 N. W. 316 ; State ex rel. Sayre v. Moore, 40 Neb. 854, 25 L.R.A. 774, 59 N. W. 755.

But respondent claims that the appropriation of $3,000 contained in § 14 of chapter 303 of the Laws of 1911 is all-conclusive and was intended to be the sole and only appropriation until some, future legislature should see fit to increase it. He argues that the legislature of 1911, from a sense of economy, and on account of the financial condition of the state, wished to confine the appropriations for the tax commission to that amount, and cites in support of his proposition the emergency clause (§ 15), which provides that, “whereas the finances of the state will not warrant the full expenses to be incurred herein, it is hereby provided that this act shall take effect July 1, 1912, and that the appointments shall not be made until July 1, 1912, the same to be thereafter confirmed by the senate in the legislative session of 1913.” His argument, however, goes too far. It is quite clear that the legislature did intend to save money. It provided a means to do this, however, in its postponement of the taking effect of the law until July 1, 1912. This is all the saving that we can believe it intended to make. It provided in unequivocable terms for the commission, and outlined its work and its duties, among which was to make a report to the legislature at its biennial sessions. It provided that the act should take effect on July 1, 1912, and six months before the legislative session of 1913 was to commence. The total annual expenditure provided by the act was $24,900. The proportionate cost of running the commission for these six months would be $12,450. It is absurd to concede or believe that the legislature only intended to appropriate $1,500 for this purpose. If, indeed, it intended to save any more than the cost of operating the commission for the eighteen months during which its creation was postponed, why did it not postpone the whole matter, and the making of all appropriations, and the creation of the commission, until the next general session of the legislature? We must assume that it intended that the commissioners should be appointed on July 1, 1912, and be prepared to make a report of their work to the legislature in 1913. We cannot assume that our legislative bodies are playing with government and creating commissions that they do not intend to support, or do not intend to be punctually appointed.

It is also claimed by counsel for respondent that this court can and should scrutinize the history of the passage of the law of 1911, and that a perusal of the records will show and the legislative journals disclose the fact that when the bill was first introduced it provided for an appropriation of $19,500, in place of the $3,000 now contained in § 14. It is argued that the amendment of this section so as to read $3,000 instead of $19,500, clearly shows that the legislature intended that $3,000 was all that should be appropriated. We do not, however, draw such an inference from the facts. It, on the other hand, is quite apparent to us that when the bill was scrutinized by the committee it was discovered that definite appropriations were made in §§ 5, 6, I, and 8 of the act for the greater part of the expenses incidental to the maintenance of the commission, and that such being the case $19,500 would be too much, and that the section was therefore amended and the amount reduced to $3,000, which sum was provided to cover incidental expenses, such as witness fees, fees of officers in serving summons and subposnas, and which expenses were not expressly provided for in the other sections of the act. If any presumptions are to be made, they must be made in favor of the act, and not against it. Of all the presumptions the strongest is that our legislators are serious-minded men, and are not trifling with politics or with government. The presumption therefore follows that they did not intend to create a commission and then to strangle it by failing to provide for its maintenance.

Eespondent further contends that there is no tax commission at all, and therefore no need of any appropriation or of any action on the part of the state auditor. He states that § 2 of the act provides that “said tax commission shall be composed of three commissioners, who shall be appointed by the governor by and with the advice and consent of the senate. Of snch three persons, one shall be appointed and designated to serve for a term ending on the first Monday in May, 1915, one for a term ending on the first Monday in May, 1917, and one for a term ending on the first Monday in May, 1919, each of said terms to begin upon the qualification of the person appointed therefor. Upon the expiration of the terms of the three commissioners first to be appointed as aforesaid, each successive commissioner shall be appointed and bold his office for the term of six years, except in case of a vacancy as hereinafter provided, and such commissioner shall hold his office until his successor shall have been appointed and qualified; while § '3 provides that “after the appointment of said first three commissioners, and except when appointed to fill a vacancy, each commissioner shall be appointed on or before the last Monday in January, during the biennial session of the legislature, next preceding the commencement of the term for which he shall be appointed. In case of vacancy, it shall be filled by appointment by the governor for the unexpired portion of the term in which such vacancy shall occur, subject to confirmation by the senate. If such appointment be made when the legislature is not in regular session, the appointee shall hold his office until the third Monday in January in the next biennial session of the legislature, when if such appointment is not confirmed by the senate, the office shall become vacant, and, on or before the last Monday in February, the governor, by and with the advice and consent of the senate, shall appoint a suitable person to fill such vacancy for the remainder of such term.” Counsel states, and the record shows, that the present commissioners were appointed on the 1st of July, a. d., 1912, and that they were not confirmed by the senate until the afternoon of January 20th, that being the third Monday in the month. He argues that the confirmation was too late, and that such confirmation should have been made prior to the Monday in question.

Counsel for respondent, however, is in error in assuming that the word “until” usually excludes the last day. It is well established by the authorities that the word “ ‘until’ may either, in a contract or a .law, have an inclusive or exclusive meaning, according to the subject to which it is applied, the nature of the transaction which it specifies, and the connection in which it is used.” (8 Words & Phrases, 7217, 7218.) And the authorities are numerous that it may be held to include the day to which it is prefixed. Such, indeed, is the almost universal rule where the word is used with reference to a future day on which something is required to be done. Re Croft, 14 W. N. C. 437; Bunce v. Reed, 16 Barb. 347, 352 ; Dakins v. Wagner, 3 Dowl. P. C. 535 ; Hahn v. Dierkes, 37 Mo. 574 ; Penn Placer Min. Co. v. Schreiner, 14 Mont. 121, 35 Pac. 878 ; Gottlieb v. Fred W. Wolf Co. 75 Md. 126, 23 Atl. 198 ; Glynn County Academy v. Dart, 67 Ga. 765 ; Louisville & N. R. Co. v. Turner, 81 Ky. 489 ; Newport News & M. Valley R. Co. v. Thomas, 96 Ky. 613, 29 S. W. 437 ; Conway v. Smith Mercantile Co. 6 Wyo. 327, 49 L.R.A. 201, 44 Pac. 940 ; St. Louis & S. F. R. Co. v. Gracy, 126 Mo. 472, 28 S. W. 736, 29 S. W. 579, 580 ; State v. Mosley, 116 Mo. 545, 22 S. W. 804 ; Houghwout v. Boisaubin, 18 N. J. Eq. 315, 318 ; Barker v. Keith, 11 Minn. 65, 67, Gil. 37, 40 ; Clarke v. New York, 111 N. Y. 621, 19 N. E. 436 ; Rogers v. Cherokee Iron & R. Co. 70 Ga. 717 ; Consolidated Kansas City Smelting & Ref. Co. v. Peterson, 8 Kan. App. 316, 55 Pac. 673 ; Kendall v. Kingsley, 120 Mass. 94, 95 ; Ryan v. State Bank, 10 Neb. 524, 7 N. W. 276. Even the few authorities which, under the state of facts presented, hold that the word “until” is exclusive, and not inclusive, hold that “this word ‘until,’ whether found in a contract or in a statute, is the same, and in either case [its meaning] must depend upon the intention of those using it, as manifested by the context, and considered with reference to the subject to which it relates.” See Ryan v. State Bank, 10 Neb. 524, 7 N. W. 276-278 ; People ex rel. Cornell S. B. Co. v. Hornbeck, 30 Misc. 212, 61 N. Y. Supp. 978 ; Croco v. Hille, 66 Kan. 512, 72 Pac. 208 ; Webter v. French, 12 Ill. 302, 303. It is to be noted that in the section under consideration, the statute provides that “the appointee shall hold his office until the third Monday in January in the next biennial session of the legislature, when if such appointment is not confirmed by the senate, the office shall become vacant, etc.” The use of the word “when,” clearly signifies an intention that something shall be done on the first Monday in January, and its use in the statute has an important bearing upon the interpretation of the word “until.” The words, “shall become vacant,” are also future in their form, and clearly indicate that no vacancy was presumed until after failure to confirm on the Monday in question. It is quite clear to us that the legislative intention was that the appointees should hold their offices until the third Monday in January, when the matter of their confirmation should be taken up, and that if they were not confirmed on or before that day that then the office should be vacant. Counsel for respondent, we know, says: “No person would long fail to distinguish the difference in meaning of the terms, ‘until next Monday/ and ‘on or before next Monday.’ One man says to another: ‘I rent you my house until the 1st day of May;’ would anyone say that the tenancy did not expire on the 30th day of April? If he should say, ‘I rent you my house until the 1st day of May, when I shall move into it myself/ no one would say that ‘when’ referred to anything other than the 1st day of May, and the use of the word ‘when’ only makes it more definite and certain that the tenancy ended on April 30th, and that the landlord would occupy it on the following day.” In this argument, however, he concedes the whole question. He admits that the words, “when I shall move into it myself,” fixed the time when the landlord might enter. Our legislature prescribes the time when the legislature shall formally pass upon the matter of confirmation, and that is the third Monday in January. The trouble with his illustration is that the tenancy is, by the terms of the agreement, definitely limited and terminated; while under the statute in question there is no termination of the right to the office unless the legislature shall fail to confirm the same. If the legislature intended that the office should become vacant before the third Monday in January, on which day the confirmation or nonconfirmation was provided for, why did they not use the words, “when if such appointment shall not have been confirmed,” and not use the words that they did, “when, if such appointment is not confirmed.” It is perfectly clear from the authorities that the words “when” and “is” and “become,” in such a context, have a future, and not a past or present, meaning. See Hammond v. Buchanan, 68 Ga. 728-731 ; Providence & W. R. Co. v. Yonkers F. Ins. Co. 10 R. I. 74-77 ; Re Birdsall, 22 Misc. 180, 49 N. Y. Supp. 450, 463 ; Wilkinson v. Winne, 15 Minn. 159, 166, Gil. 123 ; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130, 131 ; Quanah v. White, 88 Tex. 14, 28 S. W. 1065— 1067 ; Hening v. Nelson, 20 Ga. 583, 584. See also Webster’s Diet.

But there is another and more controlling reason for holding that the commission was and still is in existence, and that is, that there was no necessity for any confirmation by the legislature, either prior to or upon the third Monday of January, but that under the statute the ■commission could be confirmed at any time during the legislative session. A reading of §§ 2 and 3 of the act will, we believe, make it clear to anyone that the confirmation to be made on the third Monday in ■January related merely to commissioners who had been appointed to fill vacancies, and after the appointment of the first three commissioners provided for in § 2 of the act. It is also quite clear from § 15 of the act that, as far as the commissioners first appointed were concerned, the legislature of 1913 had the whole of the session in which to act upon the confirmation. Section 1 of the act provides that “there is hereby •created a state board to be designated and known as the tax commission.” Section 2 of the act provides that “said tax commission shall be composed of three commissioners, who shall be appointed by the governor by and with the consent of the senate. Of such three persons, one shall he appointed and designated to serve for a term ending on the first Monday in May, 1915, one for a term ending on thé first Monday in May, 1911, and one for a term ending on the first Monday in May, 1919, each of said terms to begin upon the qualification of the person appointed therefor;” while § 15 provides that “this act shall take effect July 1, 1912, and that the appointments shall not be made until after July 1, 1912, the same to be thereafter confirmed by the senate in the legislative session of 1913.” These are the clauses which relate to the ■original commissioners. The section (§ 3), on which respondent relies, relates only to vacancies occurring after the appointment of the first three commissioners and to future appointments. It provides: “After the appointment of said first three commissioners, and except when appointed, to fill a vacancy, each commissioner shall be appointed on or before the last Monday in January, during the biennial session of the legislature next preceding the commencement of the term for which he shall be appointed. In case of a vacancy, it shall be filled by appoint- 1 ment by the governor for the unexpired portion of the term in which such vacancy shall occur, subject to confirmation by the senate. If such , appointment be made when the legislature is not in regular session, the appointee shall hold his office until the third Monday in January in the ■ next biennial session of the legislature, when if such appointment is not confinped by the senate, the office shall become vacant.” The word “such,” which precedes the word “appointment,” must refer back to the appointment made in case of vacancy. There is no other way in which the section can be read without doing violence to all rules of construction and to the plain meaning of the English used by the legislature. There were no appointments to fill vacancies to be confirmed by the legislature of 1913, nor were there any “unexpired terms” to be filled. The only matter before the senate of 1913 was the confirmation of the appointments of the original commissioners, which § 15 provided could be confirmed “by the senate in the legislative session of 1913.” This is certainly the construction that the legislature of 1913 gave to the act, and in our minds is the only logical construction of which it is capable.

The peremptory writ will issue as prayed for.

Case Details

Case Name: State ex rel. Birdzell v. Jorgenson

Court Name: North Dakota Supreme Court

Date Published: Jun 17, 1913

Citation: 142 N.W. 450

Court Abbreviation: N.D.