*1 WALKER, LeRoy Petitioner C. Appellant, OMDAHL,
Lloyd Director Accounts Respondent Purchases, Appellee. 9187.
Civ. No. Dakota.
Supreme Court of North 3,
May 21, 1976.
Rehearing Denied June *2 Pearce,
William R. Pearce and William P. Sp. Gen., Bismarck, Attys. respon- Asst. dent appellee; argued by William R. Pearce.
ERICKSTAD, Justice. Chief 31, 1975, July On document entitled Petition for Writ of Prohibition an action Walker, Petitioner, entitled LeRoy C. vs. Ralph Dewing, Director of Accounts and Purchases, Respondent, was filed Burleigh Clerk of District County. Court of petition signed by was counsel and acknowledged to have been read and be- lieved to be true Walker. petition, Pursuant to the the trial court respondent, Ralph Dewing, ordered the appear before the court on the 13th of August, 1975, cause, to show if any, why a prohibition writ of should not issue. A return petition by was made to the Mr. Dewing through counsel a document day August, dated the 12th Court, filed with the the District Clerk of Burleigh County, on the 14th of August, 1975, which among things asserted that the petitioner pleaded had not any damage by the acts to himself of the re- spondent, nor other fact legally enti- tling bring proceeding. him to There- after, petitioner, counsel on the 13th day of August, filed an peti- amended tion for prohibition writ of in which the read, title changed was State of North Dakota, Walker, ex rel. LeRoy C. Petition- er, Ralph vs. Director Dewing, of Accounts Purchases, Respondent, para- and a graph was added to include the assertion Attorney had General been asked to secure such a writ but that de- he had clined. Ralph Dewing resigned When assume responsibility, Lloyd another State Omdahl appointed was as Director of Accounts and Purchases and his name was then This party. substituted as a accounts change in the title. Following the submission of briefs and argument apparently after oral and without receipt testimony, trial court Hill, Bismarck, Vanee K. for petitioner decision, uphold- rendered its memorandum and appellant. ing against Ch. subd. S.L. unconstitutional, payment amount of their annual set it was contention their office: application forth across from which it concluded to that An order be denied. the writ should by the executed subsequently was
effect it is court on October
trial *3 appeals petitioner that order that
from this court.
to explain to “apparently” use the word
We lower court as in the transpired
what us with a provide
appellant has failed accord- and
transcript proceedings, of the upon in this instance
ingly rely petitioner
statement of counsel
that effect. trans- that has been
Because the record from the not include mitted us does provisions “The of Subdivision refusal to se- a written Attorney General in- Laws the 1975 Session Chapter 25 of writ, no evidence before we have cure the expense pay- the unvouchered crease a refusal was se- that such disclosing us from two to officials ments of those state one Attorney General is cured. Since annually over thousand dollars fourteen be adverse- who would officials pay- expense the unvouchered and above success- petitioner ly affected should during 1973 paid ments to those officers ful, that for that reason we shall assume 20 of the forth in and 1974as set declined, others, he would have perhaps and Laws. 1973 Session further and, pursue we shall accordingly, “II. as by petition this inquiry precipitated expense pay- unvouchered “That such captioned and stated. now paid salary, in fact ments are peti- of the amended pertinent part salary, and such their official addition to tion reads: violation of being paid in payments are “I. Dakota Constitu- 84 of the North provides as follows: is the tion which Ralph Dewing, respondent, “The Purchases and and director of Accounts public offi- “Section 84. Salaries will contin- made and capacity in that has law, but by prescribed cers shall be as money quarterly payments ue to make said officers any salaries of in accordance to certain state officials shall not be or diminished increased 17 provisions with the of Subdivision they shall during period Laws. 1975 Chapter 25 of the fees and elected, all have been and are for payments That law states such of the said any profits arising from in the expended moneys into the state offices shall be covered of the officers discharge of official duties treasury. says The law such receiving payments. “III. paid quarterly amounts are to be such and citi- taxpayer is a petitioner “That purchas- department of accounts party a and is bene- zen of North Dakota filing any item- es without such officers matter, ficially interested laws or statement. Other ized voucher adequate rem- plain, speedy no to submit item- authorize such officials law. course of edy ordinary of ex- ized vouchers for reimbursement “IV. carrying out penses incurred actually was asked Attorney “The General The officers receiv- their official duties. a writ and he declined. below with secure such ing payments are set forth 652 See, THEREFORE g.,
“PETITIONER
ASKS
not
State.
e.
Fristad v.
a temporary
that this court issue
Writ of
Sherman,
(N.D.1956);
903
As
76 N.W.2d
respondent
Prohibition to the
command-
359, 7
bury Hospital
County,
v. Cass
72 N.D.
ing
making
him to refrain from
further
(1943); King Baker,
v.
69
N.W.2d 438
N.D.
payments to the
of-
(1939);
Anderson v.
N.W.
and to show
ficials named above
cause
Byrne,
(1932);
tive 16b Ch. subd. of an automo- provided purchase S.L.1941, ($2,500 governor’s residence); bile Board of Administration S.L.1955, subd. 16b (same); Ch. Ch. 66 the use It was Governor. ($200,000 existing construct resi- he used it property of the When State. dence). appears It that normal mainte- he was The re- mileage. not entitled to nance costs and have operating ap- strictions of 39-01-03 NDCC been covered in appropriations *5 plied as to the same extent its use to (formerly, Director of the Institutions the owned any use of motor vehicle see, Administration); in Board of this re- the the of auto- by purchase The State. 6; S.L.1929, S.L.1953, gard, g., e. Ch. Ch. mode of changed the merely mobile 20; S.L.1957, 1; S.L.1975,Ch. 31. The Ch. to the Governor. transportation available appropriated money also his It emoluments of did increase the not Governor; see, g., automobiles for e. the Guy, v. Lyons office.” ex rel. State S.L.1959, 11. Ch. subd. 216. supra, at 107 N.W.2d The mere fact the funds for such conclusion, the court’s Notwithstanding may services or have benefits come a car at suspect availability the of budget some other than the Governor’s such the beneficial to expense, State was more budget of of as the the Director Institutions mileage per- allowance Governor than the of years, in recent or the Board Administra- filing mitted of upon appropriate previous tion in is immaterial. years, vouchers. In ex v. Lyons Guy, rel. 107 This all would seem to that not indicate (N.D.1961), 211 petitioner N.W.2d there- mean- benefits within the are emoluments sought in leave to file an information in the ing nor are salaries of Section quo nature of this warranto in court seek- of the meaning within of Section 84' ing the disqualification of Governor William State Constitution. Guy. L. that not petitioner to concede seems One of his being contentions was that in as a by all State officials benefits received a legislative assembly member of in within the result of are salaries their office $4,500 1959 which appropriated sum meaning impression 84. Our of Section purchase for the use of a car of the is de- petitioner’s relative thereto view Dakota, Governor of North Mr. following quotation from rived from the ' serve as Guy ineligible became Governor petitioner’s brief: provisions under the 39 of Section lump-sum by the “Whether a allowance North Dakota Constitution. legislature for official purporting be reads: as an allow- expenses sustained be .can 39. prohibited “Section member of the ance and not a legisla- expenses No shall, assembly upon tive during compensation depends term for increase of to, and shall receive the sum entitled allowed is within be the amount whether as reimburse- as to authorize the hundred dollars limits of twelve such reasonable including expenses, might by be covered that it ment for his conclusion travel, uncompensated meals, such official ex lodging itemized statement during the There necessary 1223. 5 A.L.R.2d and other penses. thirty-five dollars by the North legislative to be no decisions session appears which issue. on this the biennium Court for each month of Supreme Dakota 244], 21 N.D. N.W.2d v. Baker ex- uncompensated elected for [74 he was Guy, v. 107 N.W.2d [(1945)]; of his in the execution incurred penses Trenbeath, Verry v. [(N.D.1961)];and the biennium during public duties [(N.D.1967)],dealt with assembly N.W.2d 567 is not legislative while precedent are not questions session, but of two thousand related which total sum * * S.L.1965, by the the issues raised Ch. law or fact for forty dollars general to the In addition petitioner. above, it has been said that rule stated for un- comparison A of the allowances a not disturb determina the courts will thou- the sum of two expenses vouchered unless the amount by legislature tion salary of three forty sand dollars plainly so excess of allowed was unvouch- dollars, that the discloses hundred possibly be incurred expenses which could times the seven expenses were almost ered discharge of their by the officers were expenses The interim salary. it was duty that obvious official eight hun- were subject of the attack intended. salary Tierney increase was or almost per member forty dred dollars Arsdale, Van 332 S.W.2d 547 [(Ky. each member. three times the 1960)],and State v. Reeves 568], S.D. [44 fact, court found Notwithstanding that this * * *” [(1921)]. N.W. 993 plainly not were that the interim Trenbeath, 148 N.W .2d in excess Verry palpably legislators in
(N.D.1967), one of the decisions referred to incurred possibly could court, during opinion public in an their duties petitioner, the exercise of *6 Trenbeath, Teigen, upheld written Justice Verry Chief the interim. (N.D.1967). 340 of the Laws validity Chapter 567 at 574 N.W.2d part the contention that a 1965in face of brief, his the petitioner further as- 45 of the thereof violated Section State serts: Constitution. “Unvouchered expense payments now Section 45 reads: are a means of hiding the actual salary of legislative “Each member of the assem- state allowing legislators officers and bly compensation shall receive a for his as be ‘apparently’ eligible to seek such of- session, per five dollars services for each fices because the ‘salary’ was not in- every mile of nec- day, and ten cents for creased.” returning to and essary going travel in meeting of the place from the assertion, pur- If he is correct in this his legislative assembly, on most usual payments prohibiting suit of a writ route.” prohibit leg- will not State officials pertinent part of the statute under offices of the seeking islators from attack in read: Trenbeath officials, expense payments State as 17 the Amendment.) under subdivision Section 54-03-20
Ҥ1. Century only during North Dakota Code Session Laws are effective hereby years amended and reenacted to read as and 1976 and termi- calendar follows: of- prior nate to the next terms payments if the Accordingly, fices. even
“54-03—20. for Living Allowance Ex- in the “emolu- were an increase held to be penses of of Legislative Members Assem- officials, they would not be ments” of bly.) Each legislative member of the as- legislators seek- from which the increase sembly of the state of North Dakota shall ing election to offices could benefit State or Governor Governor jurisdiction [late 1973] Pate 19751 and thus those would not be payments Arizona $35,000 $40,000 disqualification under 39 of our Section Arkansas 10,000 10,0001 petitioner Constitution. If the were California 49,100 49.100 40,000 Colorado 40,000 efforts, prevail in his the result would be Connecticut 35,000 42,000 those who have no control over the Delaware 35,000 35,000 Florida Georgia 40,000 compensated 50,000 manner in which are 50,000 50,000 suffer, would be the ones who would not Hawaii 42,000 46,000 ones who determined manner of Idaho 30,000 33,000 Illinois 50,000 50,000 compensation. doWe not believe that the Indiana 36,000 37,000 people approved who 84 of the Iowa 40,000 40,000 Kansas 20,000 35,000 State Constitution or when it either Kentucky 35,000 35,000 was amended in intended such a re- Louisiana 28,374 50,000 Maine 35,000 35,000 sult. Maryland 25,000 25,000 petitioner during Counsel for the oral ar- Massachusetts Michigan 40,000 40,000 45,000 45,000 gument conceded that when the unvouch- Minnesota 41,000 41,000 ered expense allowances are added to the Mississippi 35,000 43,000 Missouri 37,500 salaries, officials’ the total remuneration is 37.500 30,000 Montana 25,000 not excessive. He stressed that it was the Nebraska 25,000 25,000 Nevada 30,000 manner of the distribution of funds to State 40,000 New Hampshire 32,760 34,070 objectionable, officials that was not the New Jersey 50,000 60,000 amounts. New Mexico 26,000 35,000 New York 85,000 85,000 Proof that total of the North Carolina 35,000 38.500 North Dakota 18,000 18,000 allowances does not Ohio 50,000 50,000 constitute a total which could be considered 35,000 Oklahoma Oregon 42.500 35,000 excessive may be seen from an analysis of a 38.500 Pennsylvania 60,000 60,000 chart contained in the 1974-75 edition of Rhode Island 42,500 42.500 39,000 States, The Book of the pages through South Carolina 35,000 South Dakota 25,000 27.500 154, showing the annual salaries as of late Tennessee 50,000 50,000 for state administrative officials and a Texas 63,000 65,000 Utah 33,000 35,000 chart contained in the 1976-77 edition of Vermont Virginia 35,000 36.100 50,000 (to said published book pages as 35,000 Washington 34,300 through 120) showing the annual salaries as 42,150 Virginia West 35,000 35,000 of late 1975. Wisconsin Wyoming 25,000 44,292 37,500 37,500" The chart except indicates that *7 the of Book Governments, The Council of State Arkansas, State of paid the salaries to State States, 1974-75, ; Vol. XX, p. 1976-77, Vol. officials of the State of North Dakota are XXI, 116. p. the lowest by thousands of dollars when the In legality defense of the of the unvouch- allowances for expenses are not included. allowance, expense ered counsel for Omdahl When they are comparable included for the point long history out that there has been period the appear totals do not to be exces- payment North Dakota of of unvouch- sive. We include part which relates to ered expenses legislators, and judges, the salary Governor’s from the charts: officials. Lest confusion arise “State or other Governor Governor statement, that at the point we out jurisdiction [late [late present judges do not receive un- time Alabama $25,000 $28,955 expense payments. vouchered Alaska 40,000 50,000 1. While the Arkansas Constitution estab- allowance for the sustenance of the execu- $10,000 lishes the per Governor’s family guests at payable tive’s monthly of year, Legislature provided $2,200. the there 64, 248, two See 1975 Arkansas Acts public pay- benefits: A relations fund and 1120. $1,119.87 monthly able of and a mansion we believe that the history expense
Because of sum payment to the pub- elected payment expenses the of to elected State Dakota, lic pursuant officers of North * * * judges significant, officials other than is Chapter S.L. 1957 Each bien- part from a quote shall hereafter of the nial session of legislature since that disclosing brief filed Omdahl the history time has enacted a measure. similar payment relative to the of unvouchered ex- penses to officials. such An analysis of this discloses that history “ * * * early As as 1907North Dakota session, Legislature has since the 1957 provided for pay- unvouchered thereafter, regularly in each gradu- session * * * ments 1907. S.L. ally appropriated increased the amount for The 1907 for provided payment Act officials, expenses for State to a number of the state elect- $500.00 except for the 1969session when the appro- ed officers as appointed well as several priations purpose for that were apparently years ones for the 1907and 1908. In 1909 reduced because of an increase in the salary legislature Chapter 216, passed S.L. passed which was by the 1965session of the * * * This Act applied to the Legislature and became effective on Janu- governor and a number of other elected ary 1969. 12 Chapter See Section state officers then in office. Section 1 of of the 1965 Laws. say We $1,500.00 the Act specifically provided per legislators gradually increased the allo- year for personal expenses of the wances and that is except true governor provided and Section $750.00 provided allowances for in subdivision 17 of per year expenses for the personal of the Chapter 25 Laws. 1975 Session officers, other named per and $400.00 year for members of board of There are certain rules of construc railroad commissioners. Section 4 of the every tion which apply case in which a Act set the salaries of these same offi- statute is contended violate a constitu emergency cers. There was an clause tional provision. Act, attached to the out pointing that an “1. A law enacted by emergency existed ‘in that there is no presumed constitutional, is to be unless it provision providing of law for the pay- manifestly is shown that it is violative of ment necessary personal expenses organic law. herein state officers mentioned.’ “2. The courts will construe statutes provisions expenses “No further so as to provisions harmonize their appear state officers until During so, the Constitution possible if is to do part of that intervening time there was to the end they may be sustained. long such a depression economic that sal- Every “3. presumption in favor of kind, every aries of public private, the propriety and constitutionality leg- and, course,
went down islation, improper motives in its en- also went down. Beginning 1951 the actment are imputed Legis- never legislature realized that it would be nec- Miller, lature.” State v. 129 N.W.2d at essary to make an allowance for (N.D.1964). 356-357 proper govern- administration of rules we must addition to these con- ment by capable people and therefore *8 sider in the court is 57, being that this case beginning with Chapter S.L. * * * judgment asked to substitute its for that of legislature provided for an Legislature in of a matter calls for payment lump a sum ex- pense legislative state, discretion. In such matters we secretary allowance to the of auditor, treasurer, normally state are reluctant to intervene unless state commis- insurance, sioner the legislative clearly of act contravenes the public service com- missioners and objectives. Stability, commissioner of Constitution and its agricul- ture and labor. In the legislature, continuity, and the ability perform to are purpose, the same provided lump for a any government. essential to the survival of himself, maintain reasonably when ab- of political arm being the Legislature, The residence, of place usual given pow- sent from his body is the government, our three per day plus preserve dollars upon limits three within constitutional er travel, of twenty The miles life of the State. dollars for each such elements for the doubtless, which we could reason- and, legislator the laws a Legislature enacts live, Olympia upon the admin- under our Constitution himself at ably but maintain left to the executive at ten mileage of the laws is and per day istration five dollars apparent of It is government. branch when our own constitution per cents mile are effective as only laws can be as But it is years later. adopted thirty was so, Hence it follows that administered. do conveniently longer possible no making in a vital interest Legislature years. for a number of has not been and ” * * * offices attractive to the most Yelle, the State supra, 110 P.2d In the last qualified people. and dedicated at 165. Legislature has century of a quarter to note this observa- pertinent also It is expense account as used the unvouchered tion: people to public an incentive to attract such “ * * * Manning Sims in the court office. 577, 587, 213 S.W.2d (1948) Ky. legislative We think the assem- successive frequently, in 1154, stated A.L.R.2d 1975 were entitled to from 1951 to blies changing economic condi- recognition of the tremendous inflation cognizance take of tions, deems sensible legislature country in this and place which has taken allo- expense allow, increase, or diminish purchasing which has reduced the greatly performance wances incident accordingly and in- power of the dollar office, that while and of an the duties everyone, espe- and creased the diminish increase or may such statutes the needs cially those who must minister to receipts— gross pay the ‘take home’ —the in a people of our and do so Constitu- employee, the of the officer or adversely manner which will not reflect compensa- or tion deals with upon people of our State. the increase tion, changed is not 5 A.L. Legislature may expenses.” in such We believe that or decrease provide inflationary increases R.2d 1189.
cost of as official living for State officials from 100 index rose price consumer The violating 185 of without end of at the points points in 1967 to 166.3 Constitution, that such ex for December Report 1975, Detailed CPI penses during the term may be increased Catalog Congress 1975, 1, Library of p. without vio for which officials were elected points 123.1 74-647019, from number Constitution. lating Section 84 of the State Price Consumer points 1971 to 138.5 Washington recog- p. and for Supreme
The
Court
December
Indexes for
changed
may require
nized that
conditions
1973, p. 1.
December
Yelle, ex rel. Todd v.
such a view in
our conclusion
light
(1941). In that
Wash.2d
Nor do we our of discussion these to limit to Legislature factors the factors, these since nothing specifically but referred to these justifying been us standpoint expenses increases from the of and can conceive in these we of none amounts, we must conclude that the beyond the allowances in previous the which Legislature session of reasonably necessary amounts to exceed cover the increases in cost of are 84 of salary, thus violative of Section 20, 1973, 1975, with Compare Ch. S.L. S.L. the Constitution. 25, subd. Ch. 17. as the increase well as the amount of Notwithstanding that we have so increase, when percent compared of concluded, opinion we hold that this shall be of increase in percent the allowances and applied as prospectively of the end of sessions, preceding legislative make them term official to which each incumbent State suspect against being and militates their was elected. catch-up considered on the cost of as a We deci precedent have recent in two justified been as living. They would have sions court for using prospective of our light paid persons in salary of salaries v. Has overruling approach. In Johnson holding positions in other comparable sett, 771 at we (N.D.1974), 217 N.W.2d 780 states, prohibited by but as are salary held guest unconstitutional and statute 84 of which our State Constitution applied the case and to all prohibits salary an in the decision during increase accruing after the term for are elect- claims for relief on and which our State officials original ed. date decision. In Kitto v. District, Minot at 804 Park N.W.2d 795 In addition comparison changes to the of (N.D.1974), which we the doc abolished expense allowances trine immunity as distin governmental of session, from session which indicates that sovereign ap we guished immunity, the increase 1975 is from 1973 to unreason- plied pro to the then the decision case and able, 16, 1975, we note ap- Ch. S.L. arising to causes of action spectively propriated money payment additional days legisla of the next adjournment after employees compensation during assembly. tive 1, period January and end- beginning, ing 30, average monthly June 1975. The In the instant case reliance because of the period for all increase for on part upon State officials as employees, appropriation, a result have un- statute which we now held to be was 11.9% the salaries above which had respects it amount constitutional as been authorized the 1973 by Legislature. reasonably might excess that which considered an allowance for the increase not, mentioning
We do
in-
11.9%
living,
apply
cost of
we decline to
crease for
employees during
the last
and instead
decision to the instant case
quarter
biennium,
of the 1973-1975
mean to
apply
prospectively. The doctrine
wholly
imply that a
is
figure
controlling
similar
note,
today
a modification
apply
incidentally,
officials. We
named after an
the consumer
“Sunburst Doctrine”
price index increased 22% be-
1975,
opinion
North-
tween the
of 1973
Justice Cardozo Great
beginning
Refining
ern
Ry.
factor of
Oil
which we assume
Co.
Sunburst
Co.,
cognizant.
was
77 L.Ed.
Consumer Price
53 S.Ct.
Compare
U.S.
Index for
p.
(1932).
See 60 Harv.L.Rev.
December
with Con-
A.L.R. 254
sumer Price
p.
(1962);
Index for December
(1947);
L.J. 907
Yale
*10
Dickerson,
constitutional
Interpretation
Applica
light
Possible
amendment in
(1975).
Statutes, at 252 — 261
times
changed
tion of
conditions and
should not
be overlooked.
applied the doctrine
Although we have
contemplated in
more
than
prospectively
The writ
is denied and the
prohibition
Harvard Law Re-
footnote 11 of the above
prohibition
order
the writ of
denying
note,
light
in
of all
view
we believe that
herein.
affirmed
reasons stated
for
opinion
in this
that we have said earlier
justifying the total amount of remunera-
PAULSON, JJ., and
VOGEL and
DOUG-
tion,
offi-
and the reliance which
Judge,
HEEN,
B.
District
concur.
LAS
25, subd. 17
placed upon Chapter
cials have
previous
providing
statutes
SAND, J.,
disqualified
himself
deeming
allowances,
this
circumstances
HEEN,
B.
participate;
did not
DOUGLAS
adaptation
case
our
of the Sun-
warrant
District,
Judge of the
Judicial
sit-
Second
burst Doctrine.
place.
in his
ting
with or
holding,
For cases
either
without
PEDERSON,
(concurring
Judge
special-
Doctrine,
reference to the
Sunburst
ly)-
faith in reliance on
good
officers who act
by
reached
I concur
the result
before it
statute
is declared unconstitu-
majority
subdivision
e.
protected,
g.,
tional will be
see
Wichita
Laws,
84 of
violates Section
Robinson,
County v.
155 Tex.
276 S.W.2d
I also con-
the North Dakota Constitution.
Holbrook,
(1954);
Allen v.
103 Utah
cur in
that the opinion
the determination
(1943);
Thomp-
P.2d 242
Golden
prospective application only,
shall have
son,
(1943);
194 Miss.
have confronted in this case will be con-
sidered when it fully meets, study
next a solu- and from careful up
tion will be found which will shore
executive than it. branch rather undermine