1 N.D. 190 | N.D. | 1890
A peremptory writ of mandamus having been awarded the relator in the trial court, defendants bring the case before this court by appeal. Relator was county assessor of Ransom county at the time of the adoption of the constitution of this state. His term of office as fixed by the territorial laws would not expire until January, 1891. On the 18th day of April, 1890, the board of county commissioners of Ransom county, claiming to act under the provisions of § 30, of the revenue law, approved March 11, 1890, appointed district assessors for each of the five commissioner districts of that county; and these appointees were about to enter upon the duties of their office when these proceedings were institued to compel the, county auditor and board of county commissioners to furnish relator the necessary books, blanks, etc., to make aesessment of property in the county, they having refused to so supply him on proper demand. They seem to justify their refusal on the ground that by the revenue law the office of county assessor was abolished, and that, since the appointment by the board of an assessessor for each of the commissioner districts of the county, these assessors are the only officers having any authority under the law to make the assessment that was formerly made by the county assessor. Relator first claims that the revenue law did not contemplate the appointment of any assessor under its provisions before the expiration of his term of office. But was there any such office left to fill after the enactment of this statute ? Section 30 of that act provides for the office of district assessor. All counties and parts of counties, not organized into civil townships, are to be divided into assessor districts, which
These inquiries show into,what inextricable confusion the collection of the public revenue would be thrown should it be decided that these two necessarily inconsistent offices could coexist. The office of district assessor, created by the revenue law, displaces the office of county assessor, because the two cannot stand together. But it is said that this portion of the revenue law was not to take effect until after the expiration of the term of office of the county assessors in office when the state was admitted into the Union. By an emergency clause, the act went into operation upon its approval. There is nothing in the language of the act to indicate that the provision relating to the office of district assessor should be held in abeyance until the expiration of the term of office of the county assessors. The act in its full scope became a law upon its approval. It was true that, a new office having been created, no district assessor could have been placed in the office to exercise its functions until after the fall election, had not the statute in express terms provided that boards of county commissioners might by appointment fill any vacancy in the office. We are here met by the ar
But it is further insisted by relator that section 10 of the schedule has made the office of county assessor a constitutional office, and has therefore placed the office beyond the power of the legislature during the balance of his term. The portion of the section material to this point provides that, notwithstanding the adoption of the constitution, “the county and precinct officers shall hold their offices for the term for which they were elected.” It will be observed that this declares no settled policy of the state with reference to these offices. It does not purport to regulate permanently the term of any office, or permanently place that term of the office itself beyond the control of the legislature. The office is not imbedded in the constitution, as is the case with respect to the offices named in section 173 of the constitution. These are constitutional offices. The other offices, including that of county assessor, aré offices which, under the express provisions of section 173, the legislature may abolish by creating other offices to take their place. “The legislative assembly shall provide by law for such other county, township, and district officers as may be deemed necessary,” etc. The most that can be claimed, and, in fact, all that is claimed, by relator, is not that the office or term of office is permanently removed from legislative interference, but that the sovereign people have hedged about with constitutional protection these particular persons holding the office of county assessor at the time we attained the dignity of self-government. Sovereign states are not wont to protect particular persons from removal from office by the legislature during their term of office, and yet leave the office and the right of future incumbents entirely to the control of the law-making power. Unless the office is permanently removed from legislative control — unless all incumbents are tobe
Seasoning upon the same line, we say that the constitution has, in express terms, vested in the legislature the power and made it their duty to provide by law for such other county officers than those named in section 173 (and county assessors are not therein named) as may be deemed necessary; and section 10 is to be read with the qualification that the officer shall hold the office subject to the power of the legislature to abolish the office. It was the thirteenth section of the seventeenth