105 N.W. 734 | N.D. | 1905
The relator seeks a permanent injunction restraining the defendants from further proceeding towards the remodeling and reconstruction of the capitol building of the state of North Dakota, and from all other proceedings by said board provided for by chapter 166, p. 297, Laws 1905. Said chapter provides for the appointment by the governor of a board of capitol commissioners, consisting of three persons. It provides that such board shall have power to make a contract for the remodeling and reconstruction of the capitol of the state of North Dakota, and for the erection of a governor’s residence on lots owned by the state in Bismarck. The details as to how funds shall be procured by issuing and selling certificates of indebtedness to be drawn solely against the funds derived from the sale of public lands granted by congress to the state under section 12 and 17 of the enabling act (25 Stat. 680, 681, c. 180), are provided for by the act. The members of the board were duly appointed by the governor and confirmed by the senate. The members thereof duly qualified under their appointment by taking the oath and giving the bonds required by the act, and duly organized as a board by the election of a president and the appointment of a secretary. Afterwards the board advertised for plans and specifications for remodeling and reconstructing the capitol building, and for bids for doing the work and furnishing the materials under the plans and specifications furnished. While such advertisement was proceeding, a preliminary injunction was issued by this court upon a complaint verified by the relator. An order to show cause was incorporated' in said preliminary injunction why the same should not be continued in force permanently. The defendants appeared, and, issues having been
The plaintiff alleges in the complaint that chapter 166, p. 297, Laws 1905, under which the defendants are proceeding, is unconstitutional and void, and that the defendant board is proceeding in direct violation of said chapter, which specifies what their duties shall be and how they shall proceed. In general, the complaint alleges that the board is proceeding to carry out the provisions of said act before tit is practicable, and is therefore contrary to the terms of the act, and that the board has violated section 6 (page 299) of said act, 'which prescribes -their duties as to selecting plans and specifications and receiving bids. The claim is made in support of this objection that competitive bids are not asked for, either as to plans or as to doing the work. It is also claimed that the board is contracting a debt against the state which is in excess of the -limitation on debts fixed by the constitution. It is also contended and alleged in the complaint that the .board is proceeding to dispose of the lands donated by congress by the enabling act in a manner contrary to the -provisions thereof, and that the board is diverting the fund -derived from the sale of said lands by providing for the payment of interest on certificates of indebtedness out of said funds. It is also alleged that the said act is unconstitutional 'because (1) it contains more than one subject, viz., the reconstruction of a capitol building and the erection of a governor’s residence. (2) That it delegates to the board the power of determining what sum shall be expended in a governor’s residence, and what sum shall be expended in -reconstructing the capitol building. (3) That the law contravenes the provisions of the enabling act by making provisions for the erection of a governor’s residence. No objection -is urged that this court is without jurisdiction to entertain the action as an original one.
Whether a residence for the governor of the state at the capital is a public building, within the terms of the enabling act, or not, is a matter of argument between opposing counsel in the case. Section 12 of the enabling act grants fifty' sections of land to the state “for the purpose of erecting public buildings at the capital * * * for legislative, executive and' judicial purposes.” Section 17 of said act grants to the state 50,000 acres of land “for public buildings at the capital of said state.” There is no other provision in the enabling act relating to or prescribing what build
It is next contended by the relator that said chapter 166 is void, as an unwarranted delegation of legislative powers to said board. The basis of such contention is that matters of legislative discretion are to be determined by the board, which should have been specifically -determined -by the legislature. It -is -claimed that the sums to be expended on a residence for the governor involves a matter of legislative discretion, which cannot properly be delegated to- the board, but must be limited by the legislature to an amount certain. Under the constitution all legislative power is vested in a senate and house of representatives (section B5), and all constitutional provisions are mandatory, unless expressly declared to be otherwise (section Bl). Whether the power to determine the relative amounts of the fund derived from the sale of the lands granted by
The exceptions to this general rule are not material to be here considered. If this power be purely legislative, defendants concede that no delegation of the duties is permissible. If purely administrative, the plaintiff concedes that they may be delegated. The line dividing these two powers is not always readily seen, and to determine -when the line is crossed is an extremely delicate duty in many instances. Unless the delegation of the power is clearly a violation of the -constitutional provision that the legislative power is vested in the legislature, the plaintiff’s contention on this point should be upheld. The will of the legislature should not be thwarted, except in a clear case of violating the mandate of the constitution. Cooley’s Constitutional Limitations (5th Ed.) c. 7, pp. 192-200; Cincinnati, etc., Ry. Co. v. Clinton County Com’rs, 1 Ohio St. 88. It will not be doubted by any one that the
It is claimed that the legislature has fully performed this general duty by the provisions of section 1 of chapter 166, wherein it is enacted what the duties of the board of capitol commissioners shall be in the following words: “And whose duty it shall be to remodel and reconstruct upon its present site the capitol building of the state of North Dakota, at Bismarck, and erect a suitable residence for the governor on the lots now owned1 by the state according to the provisions of this act.” The law contains no directions as to how much shall be expended for each of said buildings. That is left entirely to the commissioners. Nor does the law definitely specify when these buildings shall be completed, nor when the 'duties of the commissioners shall end. It cannot be reasonably disputed that the legislature has power to delegate to a board the work of superintending the erection of public buildings. The legislature cannot act upon every detail arising in the course of the erection of public 'buildings, or in preparation therefor. This power must necessarily be delegated to some person or body. These duties are deemed executive, although they often involve discretion, and some of these could properly have been specifically provided for by legislative enactment. Duties that relate to' acceptance of plans and specifications, making contracts, selecting materials, and other similar ones relate to the execution of the law enacted by the legislature, and are deemed administrative. State v. McGraw, 13 Wash. 311, 43 Pac. 176; Fleckten v. Lamberton, 69 Minn. 187, 72 N. W. 65; Territory v. Scott, 3 Dak. 357, 20 N. W. 401.
The principle that purely legislative functions and discretion cannot be. delegated is illustrated in many cases in construing the powers and acts of city councils. The legislature may delegate to such bodies the power to make provisions for 'local government within constitutional limitations. In carrying out these functions city councils are held not to have the power to delegate to others
Other objections are urged against the validity of the law, and against the proceedings of the board, but to determine them would serve no purpose at present.
An order will be entered permanently enjoining further proceedings of the defendant board.