176 N.W. 913 | N.D. | 1920
Lead Opinion
This is a proceeding to compel the defendants to admit the plaintiff into the Bank of North Dakota for the purpose of conducting an examination. The trial court refused to issue the writ-prayed for and the appeal is from the order made.
The plaintiff, who is the state auditor, contends that the examination of this bank constitutes a part of his official duties and relies upon subdivision 14 of § 132 of the Political Code which makes it the duty of the state auditor “to inspect, in his discretion, the books of any person charged with the receipt, safeguarding, or disbursement of public moneys,” and upon § 135, which provides that the auditor shall have access to “all state offices during the business hours for the purpose of inspecting such books, papers, and accounts therein as may concern his duties.” Chapter 147 of the Session Laws of 1919, which provides for the creation of the Bank of North Dakota, is cited and relied upon as showing the character of that institution. From the various provisions of this chapter it is contended that the institution is so far public in its character as to be a part of the government of the state, rather than a trading company, and that, therefore, it is subject to the same measure of inspection by the state auditor as are state officers referred to in § 135, Comp. Laws 1913.
The foregoing contentions are met by the respondents with the statement that it is immaterial whether the Bank of North Dakota be considered a trading company or a public institution; that it is nevertheless a bank performing certain of the ordinary functions of an ordinary bank, such as the receipt of deposits, etc., and consequently subject to the same duty of regarding the confidence reposed by depositors and customers as are privately owned banks. It is argued from this that its records are not in the full sense public. It is pointed out that the act authorizing the creation of the bank (§ 23) specifically provides for examinations by the state examiner, the results of which are to be reported to the industrial commission, the legislative assembly and the state banking board.
Aside from the foregoing, there is, in our opinion, little basis for argument one way or the other. A careful examination of the statutes cited leads us to the conclusion that the examination of the Bank
I think the Bank of North Dakota is a material department of the state treasury and as such it is subject to examination by the state auditor.
Concurrence Opinion
(concurring). The sole question presented in this case is the right of the state auditor to inspect the books, papers, and accounts of the Bank of North Dakota. In former cases I have asserted that the constitutional amendment under which the Bank of North Dakota is purported to have been created was not in fact adopted. While these views remain unchanged, the fact also remains that the legislature acting under the alleged constitutional amendment hag enacted a law creating the Bank of North Dakota; that such law has been put into operation, and that the present controversy has arisen thereunder.
The state auditor has such powers and is required to perform such duties as are prescribed by law. N. D. Const. § 83. The Bank of North Dakota is a creature of the legislature. The manner of inspection of books of public officers and departments, as well as the banks and other financial institutions in the state is also a matter of legislative control. Hence, all questions in any manner involved are bottomed upon legislative enactments, and the ultimate question is: Did the legislature intend that the state auditor should be empowered to inspect the books, papers, and accounts of the Bank of North Dakota? I believe that this question must be answered in the negative for’ the reasons stated in the opinion prepared by Mr. Justice Birdzell. I therefore concur in that opinion.