7 N.W.2d 865 | N.D. | 1943
Lead Opinion
In the complaint in this action the state of North Dakota demanded an accounting by the defendant Erickson of certain funds which it was alleged were received by him as insurance commissioner of the state of North Dakota, and disbursed or retained by him or his agents contrary to law. The defendant demurred to the complaint. In the district court the demurrer was sustained and judgment was entered for the dismissal of the action. This appeal is from the order sustaining the demurrer and from the judgment.
It was alleged in the complaint that the action was brought by direction of the governor pursuant to the provisions of chapter 265, Laws of ND 1941. The complaint was signed by Clyde Duffy as attorney for the plaintiff. It does not bear the signature of the attorney general nor in any way indicate that Mr. Duffy appeared for the state pursuant to any authority from the attorney general. By this demurrer, defendant sought to challenge the authority of Mr. Duffy to represent the state.
As was stated in plaintiff's brief, "The sole question at issue is whether this action may be prosecuted by anyone other than the attorney general." The brief continues, "There may well be a *419 question as to whether that issue could be raised by demurrer but we waive that question as it is important to have the primary issue determined." No objection was made to the propriety of the remedy in district court. The objection was expressly waived in this court. And since no question of jurisdiction is involved, we do not consider it necessary or proper for us to pass upon the correctness of the adopted procedure.
Upon the merits the first question with which we are confronted is one of statutory construction. The statutes involved are chapter 265, Laws of N.D. 1941 and § 157, Compiled Laws of N.D. 1913. The title and pertinent sections of chapter 265, supra, are as follows:
"An Act Providing for special audits and investigations of the North Dakota Mill and Elevator Association, the Bank of North Dakota, the State Highway Department and the Office of State Highway Commissioner, the Board of Administration, the Board of University and School Lands, the Industrial Commission and the State Securities Commission, and such other offices, departments, institutions and commissions of the State as the Governor shall designate; providing for the appointment of a Special Examining Commissioner and for the prosecution of any action or proceeding which may be deemed warranted as a result of such audit investigation or check up; providing for an appropriation to carry out the purposes of this Act."
Section 2:
"In order to carry out the foregoing objects and purposes, the Governor is hereby given and granted the following specific power and authority, viz.:
"(A) To appoint a citizen of the State of North Dakota to carry out special audits and investigations as the Governor shall direct, which appointee shall be officially known and designated as the Special Examining Commissioner and to fix the compensation of such commissioner and to remove him at pleasure and appoint another commissioner in his place.
"(B) To authorize and empower said commissioner to employ and to discharge and replace such assistants, employees, auditors, accountants, attorneys and investigators and other persons as the Governor *420 may deem advisable and necessary and; with the consent and approval of the Governor, to fix their compensation.
"(C) . . . . . . . . . .
"(D) To direct, authorize and empower said commissioner in the name of the State of North Dakota to commence, prosecute and carry on such actions, suits or proceedings as the Governor may deem justified and advisable by reason of or growing out of any disclosures which may result from proceedings under the Act."
Paragraphs 1, 2 and 3 of § 157, supra, provide as follows:
"The duties of the attorney-general shall be:
"1. To appear for and represent the state before the supreme court in all cases in which the state is interested as a party."
"2. To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer."
"3. To appear and defend all actions and proceedings against any state officer in his official capacity in any of the courts of this state or of the United States."
Defendant contended in the district court and now contends upon this appeal that chapter 265, supra, when construed with § 157, supra, requires that in all actions, brought pursuant to its terms the state must be represented by the attorney general. He urges two well recognized rules of statutory construction which he says will, if applied, necessarily lead us to the construction for which he contends. The first is, that statutes relating to the same subject matter must be consrued together and harmonized so as to give effect to each if it is reasonably possible so to do. The second is, that where a statute is subject to two constructions, one of which is of doubtful constitutionality and the other of which is clearly constitutional, the latter construction will be adopted. He asserts that the construction he advocates is reasonable and gives effect to the provisions of both chapter 265 and § 157, supra, and also that if chapter 265, supra, be construed to deprive the attorney general of the right to represent the state in actions brought pursuant to its provisions it would be of doubtful constitutionality. *421
The parties agree that prior to the enactment of chapter 265, supra, the exclusive right to represent the state in all actions brought in its name was vested in the attorney general; and with this construction we are in complete accord. The question then, is; did the legislature in enacting chapter 265 intend to amend or modify § 157, supra, by requiring the attorney general to share that hitherto exclusive right with a private attorney designated by the examining commissioner?
For the answer to this question we must first look to the language of the statute itself. Marks v. Mandan,
In support of the contention that chapter 265 provides for representation of the state by private attorneys, appellant relies chiefly on the provisions of subsections B and D of § 2 of the Act. Subsection D authorizes the governor to direct the examining commissioner to commence such actions as the governor may deem justified by any disclosures resulting from any investigation made under the act. Subsection B authorizes the examining commissioner to employ and discharge auditors, accountants, attorneys and investigators. Neither section expressly provides that the attorney general shall be displaced as the representative of the state in litigated actions. It is evident that the legislature did not contemplate that the examining commissioner should represent the state in such actions as there is no requirement that he be an attorney and the present examining commissioner is not an attorney. Nor does it follow as a necessary implication of subsection B that the attorneys appointed by its authority were to have the right to represent the state in the courts. There are many necessary duties of a preliminary nature which these attorneys may perform without infringing on the powers of the attorney general. The nature of these duties and the necessity for the commissioner to employ *422
attorneys to perform them are disclosed by the provisions of subsection E of § 2 of chapter 265. This section authorizes the commissioner in connection with his general powers of conducting audits and investigations "to hold hearings and take testimony" of witnesses who have been subpoened to testify before him. A legislative authorization to employ an attorney for the sole purpose of assisting in the investigations, of examining witnesses at the hearings presided over by the commissioner and of advising the commissioner upon the effect, the competency and the sufficiency of the evidence adduced, is in complete harmony with legislative practice in conducting legislative investigations. We think therefore that a construction thus limiting the powers of the authorized attorneys is a reasonable construction. State v. Gattavara,
It is our duty to construe chapter 265, so as to avoid conflict with other statutes and constitutional doubt if it is reasonably possible so to do. State ex rel. Kettle River Quarries Co. v. Duis,
Following the rules of statutory construction above set forth, we hold that chapter 265, supra, does not empower the governor and the examining commissioner to authorize an attorney other than the attorney general to represent the state in actions brought thereunder.
The order and judgment of the district court are therefore affirmed.
CHRISTIANSON and NUESSLE, JJ., concur.
Concurrence Opinion
I am unable to agree with all that is said in the majority opinion and therefore set forth my views separately. I have no doubt as to the power of the legislature to prescribe the duties of the attorney general or to authorize special attorneys to conduct litigation for or on behalf of the state.
The attorney general is a constitutional officer only in so far as the establishment of the office is concerned. The powers and duties appertaining to the office are such as the legislature may prescribe. The Constitution does not undertake in any manner to define or limit those powers and duties. Section 83 of the Constitution merely says, "The powers and duties of the . . . Attorney General . . . shall be as prescribed by law." Notwithstanding what may have been said in Ex parte Corliss,
Section 1 of chapter 265, ND Session Laws 1941, provides that: "The Governor is hereby authorized, directed and empowered without compensation, to make a special audit, investgation and check up of any or all of the following, viz.; The North Dakota Mill and Elevator Association, the Bank of North Dakota, The State Highway Department and the Office of State Highway Commissioner, the Board of Administration, the Board of University and School Lands, The Industrial Commission and The State Securities Commission, and such other offices, departments, institutions and commissions of the State as the Governor shall designate."
Section 2 of this act vests in the governor certain power and authority for the purpose of carrying out the things that the governor is authorized and directed to do by § 1. Among these authorizations is the appointment of a special examining commissioner. The governor is given the further power to "authorize and empower said commissioner to employ and to discharge and replace such assistants, employees, auditors, accountants, attorneys and investigators and other persons as the governor may deem advisable and necessary and, with the consent and approval of the governor, to fix their compensation." The governor is also given authority "to direct, authorize and empower said commissioner in the name of the state of North Dakota to commence, prosecute and carry on such actions, suits or proceedings as the governor may deem justified and advisable by reason of or growing out of any disclosures which may result from proceedings under the Act."
The governor may also direct the commissioner to hold hearings and take testimony. The commissioner when authorized by the governor may subpoena witnesses to appear before him and may call upon various officers and boards to furnish information with respect to transactions which the commissioner is authorized to investigate. Certain other authority incidental to carrying out the purposes of the act is vested in the governor the details of which are unimportant for the purposes of determining the controversy before us.
At the time of the enactment of chapter 265, Session Laws 1941, the attorney general was authorized "to institute and prosecute all *425 actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer." Supp. to Comp. Laws, § 157. Were it not for the provision of chapter 265 authorizing the employment of attorneys there could be no question but that it would be the duty of the attorney general to represent the state in an action such as the one now before us. I agree with the majority that if possible the statutes should be harmonized. Furthermore, the attorney general should not be deprived of the customary and long-standing powers conferred upon him by the legislature unless the intention of the legislature to do so clearly appears. Chapter 265 does not clearly express such an intention. It is ambiguous on this point and subject to a construction that will not result in conflict with previous legislative enactments.
Chapter 265 authorizes the employment of attorneys and others whom the governor may deem necessary for the conduct of the audits and investigations contemplated by that act. The litigation which may result from such investigations and audits carries those matters into the realm of the powers and duties of the Attorney General under § 157, Supp. to Comp. Laws. When and if the special examining commissioner is directed or authorized by the governor to prosecute an action or proceeding in the name of the state upon matters growing out of audits and investigations authorized by the act it becomes the duty of the attorney general to prosecute and conduct such action as the chief law officer of the state. The statute under consideration does not authorize an attorney appointed by the commissioner to supplant the attorney general in the performance of this duty. I therefore concur in the statements of the law contained in the syllabus and the result arrived at by the majority opinion.
Dissenting Opinion
I cannot agree with the majority opinion. The decision is based upon four general propositions: that this chapter 265 must be construed in the light of § 157 of the Compiled Laws, prescribing the duties of the attorney general; that the statutes must be construed together and must be harmonized, if possible; that to uphold the maintenance of this case would render chapter 265 of doubtful constitutionality because of the decision in Ex parte Corliss, *426
Section 157 of the Compiled Laws is the action of the legislature in prescribing the duties of the attorney general under the mandate of the people, set forth in § 83 of the Constitution. The Constitution nowhere prescribes these powers and duties. Section 83 of the Constitution provides that these powers and duties should be prescribed by law and so the legislature, by law created, defined and prescribed the powers of the attorney general.
The legislature may amend a statute, without referring to it, and while we must attempt to harmonize the original, and the amending statute, particularly where the original statute is not mentioned in the amending statute (and chapter 265 makes no reference to § 157) yet if this chapter 265 limits the powers granted to the attorney general by § 157 of the Compiled Laws, or in any way changes them or requires some of them to be shared with another officer, then it is an amendment. Thus, we get back to the question whether the legislature, having already prescribed the powers of the attorney general, may later provide that some of them be shared with another official and may ignore the historic position of an attorney general.
The import of the majority opinion is that the issues involved may be raised by demurrer to the complaint and that any other construction than that given in the opinion might render the law of doubtful constitutionality because of the holding in Ex parte Corliss.
The grounds of demurrer are:
There is no merit therein. The district court has jurisdiction of the defendant, and the subject of the action. The plaintiff is the state of North Dakota, and has legal capacity to sue. The defendant makes no attempt whatever to show wherein the complaint does not state facts sufficient to constitute a cause of action. Neither is there any defect of parties plaintiff shown. The defendant does not claim that any other party should be named.
The only argument made by the defendant on the demurrer is the constitutionality of chapter 265 of the Laws of 1941. This attack upon the statute involved is based mainly upon the right of Mr. Duffy to sign the complaint as attorney for the plaintiff. The opinion of the majority is devoted entirely to this issue. The right of commissioner Klaudt to commence this action in the name of the state, is not attacked. Nor does the opinion question the power of the commissioner to employ counsel; the power of the governor to appoint the commissioner; the power of the governor to grant immunity, or the power of the governor to go beyond the territorial limits of the State to enforce the attendance of witnesses — questions attempted to be raised by the demurrer.
The complaint does not state who appointed Mr. Duffy, or that the attorney general objected. Our statute, § 797, Compiled Laws, provides how the authority of the attorney to represent his alleged client can be questioned and proof of authority may be secured. If the adverse party makes a showing to the court on reasonable grounds, and moves that the attorney be required to show authority to act for the plaintiff, the court may grant such motion. The question is not reached by demurrer.
In United States v. Throckmorton,
In State v. Gattavara,
In the case at bar the attack is not made by a motion to quash, nor a demand for proof of authority; nor is it claimed there is no law authorizing anyone other than the attorney general to bring the action. It is practically admitted by the defendant here that there is a law permitting this action to be brought as done, but the contention is that such law is unconstitutional.
All legislative enactments are presumed to be constitutional. State *429
ex rel. Haggert v. Nichols,
Before a court has a right to construe such enactment on the theory that any other construction would render it of doubtful constitutionality, it must be a construction which does not do violence to the fair meaning of the language and there must be two or more such constructions possible, before you can make a choice. In that case, if there be conflict, the court will give the statute the construction which upholds constitutionality. Where there is but one fair interpretation of the language that is the interpretation which must be given and we must construe it this way even if this renders it unconstitutional. State ex rel. Fargo v. Wetz,
This statute involved gives the commissioner power to employ counsel and to bring an action in the name of the state. Has the legislature the right to so do? Before a law, or any portion thereof, can be declared to be unconstitutional, the enactment must be shown clearly to violate some provision of the Constitution of this State or of the United States. State ex rel. Fargo v. Wetz,
In the same case cited this court quoted from Lewis's Sutherland, Statutory Construction, and approved this language: "If a law is plain, and within the legislative power, it declares itself and nothing is left for interpretation. It is as binding upon the court as upon every citizen. To allow a court in such a case, to say that the law must mean something different from the common import of its language, because the court may think that its penalties are unwise or harsh, would make the judicial superior to the legislative branch of the government, and practically invest it with the law-making power."
In State ex rel. Harness v. Roney,
That the law is "within the legislative power" cannot be successfully denied, for the Constitution says the attorney general has just such powers as are prescribed by law and in no manner ties down the "prescribing" to any particular day — certainly not to the first enactment adopted after the Constitution went into effect. No one doubts that the state Constitution is not a grant of powers to the legislative department, but admits it is a limitation on its power, so that the legislature may enact any law not expressly or inferentially prohibited by the Constitution of the state or of the United States. *431
If, as stated by plaintiff in his brief, he waives the approach through demurrer because "it is important to have the primary issue determined" and defendant argues the main issue to be determined is the question of constitutionality, and this court says we must construe the law as we do otherwise there may be grave doubt of its constitutionality, then the issue is brought before us by a demurrer which cannot stand, and in McIntyre v. State Bd. of Edu.
To me there are two main errors in this majority opinion: First, that it finds the only reasonable construction of this statute is that it was not intended in any way to modify previous statutory regulations making the attorney general the sole counsel to bring actions on behalf of the state or to appear for the state; and, second: that if it were the intent so to do, there would be grave doubts as to the constitutionality of the portion considered.
To me both of these views are erroneous. It was the intention of the legislature to grant this power to private counsel employed by the commissioner appointed by the governor, and I cannot see how such view would throw doubt on the constitutionality. To assume there are two reasonable constructions ignores the plain language of the statute and is in effect judicial legislation. The legislature, as was said before, may enact any legislation it sees fit unless it clearly and plainly violates constitutional provisions.
This case of Ex parte Corliss cited, was adopted by a divided court. However it was the interpretation, but there is nothing sacrosanct about the decision. While involving a serious question — the interpretation of the Constitution — there is no value in adhering to it if it be plainly wrong.
We may as well face the situation directly and admit that the holding in Ex parte Corliss is erroneous; that it hampers the legislative department of the government and puts a veto upon certain of its powers. The situation resolves itself to this, that though the commissioner commences the action, and though he may employ attorneys to assist him in his investigation, if he brings an action in the name *432 of the state he can have but one attorney — the attorney general. If that contention be correct, and the attorney general refuses to bring the action, what then?
The issue gets back to the decision in Ex parte Corliss, supra. Therein it is stated in effect, that offices which "are embedded in the Constitution . . . cannot be stripped by the legislature of the important duties inherently connected therewith, for if this can be done, then these offices were `embedded in the Constitution' for no purpose."
Words used are interpreted as understood when used. "Executive power," "legslative power," "judicial power" are terms which at times may require interpretation and the Constitution to be construed accordingly; but no such idea is found in the Constitution regarding the attorney general.
If it were the intent of our constitutional fathers, and the deliberate judgment of the people adopting the Constitution, that the term "attorney general" carried with it certain inherent functions which could not be infringed upon, and had so "embedded in the Constitution" these inherent powers, then why would the Constitution not say so, and why does the Constitution say that "the powers and duties of the *433 . . . attorney general . . . shall be as prescribed by law?" The people did not need to provide for an attorney general. Could it be said, that if they had failed to do so, nevertheless, there would be such an office because of the inherent functions which came down to us from the English law? If it be so, that there are "inherent functions," which the people assumed to be in existence when provision was made for an attorney general, why does the Constitution say that the duties of such officers shall be such as prescribed by law? Would he have any functions if the law did not prescribe them? Do we go back to the theory of attorney general? If so, then why was provision made for his election. For in the olden days the attorney general was the appointee of the executive. The king was the executive. He appointed the attorney general, and he prescribed the duties of the attorney general. The legislature prescribes the duties of the attorney general. And the legislature may widen these or limit these, and if they repeal the statute entirely, then he would have no duties. The power that prescribes the duties may also provide that these duties will be shared by others. This power is exclusively in the legislature, and the legislature does not need to go back to the time of Edward I to determine what are the "inherent functions" of the attorney general. There are no inherent functions recognized by our Constitution. I find nothing in the "Journal" nor in the "Debates" of the constitutional convention to indicate any member of the constitutional convention considered this. The people said the legislature shall prescribe the duties of that officer, and the people through their representatives the legislature, say how long these functions shall last, how they shall be modified, limited or shared. If the legislature, by foolish enactments, should so limit the duties of this officer as to depart from the old established concept, the question of its wisdom is to be determined by the people themselves, when they elect the legislature. It is not for the court to say that because, in the days of the Plantagenets, the attorney general had certain peculiar functions conferred upon him by the king, the legislature of North Dakota is bound thereby. For this court to hold that because of the plain implications in Ex parte Corliss there would be substantial doubt as to constitutionality, and *434 to avoid this give a construction to the statute it will not bear, is to determine the legislature did not mean what it said and that the court gives this construction because of a decision which I believe should be overruled.