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, *Page 426 16 N.D. 470, 114 N.W. 962; and that the questions involved may be determined upon demurrer, and we agree with the first two.
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:
I. "That the court has no jurisdiction of the person of the defendant or the subject of the action."
II. "That the Plaintiff has not legal capacity to sue.
III. "That the complaint does not state facts sufficient to constitute a cause of action. *Page 427
IV. "That there is a defect of parties plaintiff."
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, 98 U.S. 61, 25 L ed 93, an action was brought in the name of the United States, by the United States Attorney for the district of California. It was not brought by the attorney general. The opinion indicates clearly, that there was no congressional authorization of any district attorney to bring an action in the name of the United States, and the United States court says, "We are of opinion that, unless by virtue of an act of Congress, no one *Page 428 but the attorney general, or someone authorized to use his name, can bring a suit to set aside a patent issued by the United States, or a judgment rendered in its courts on which such a patent is founded." (The issue arose over an issuance of a patent.) The plain import of this is; that if there had been an act of Congress authorizing someone else to bring such an action, it would be legal. In the case at bar, we have an act of the legislature authorizing the bringing of this suit by someone other than the attorney general.
In State v. Gattavara, 182 Wash. 325, 47 P.2d 18, an "action was instituted in the name of the state of Washington for and on behalf of the state department of labor and industries. . . ." There the objection that the action "was not brought by the Attorney General or by someone authorized by law to bring or maintain the action" was not raised by demurrer. It was raised by motion "to quash the summons," based upon the ground that it was not brought "by anyone authorized by law" to bring the action. Washington court in State ex rel. Medical Examiners v. Clausen,84 Wash. 279, 146 P. 630, 632, had occasion to comment on difference between suits brought on behalf of the state, where there was no statutory provision authorizing appearance by private counsel, and suits brought under statutes authorizing such procedure, and states: "On the Attorney General in certain instances, and on the prosecuting attorneys of the several counties of the state in others, is imposed the duty of prosecuting offenders against the laws. The rights and powers of these officers in this respect are absolute in all cases wherethe statute has not specially granted the power to another; and, as we find no special grant of power to the medical board to employ special counsel to prosecute offenders against the act in question, we are forced to the conclusion that no such power exists."
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 *Page 429 ex rel. Haggert v. Nichols, 66 N.D. 355, 360, 265 N.W. 859. "Every reasonable presumption is in favor of the constitutionality. . . . This presumption is conclusive unless it is clearly shown that the enactment is prohibited by the Constitution of the state or of the United States." State ex rel. Linde v. Taylor, 33 N.D. 76, 85, 156 N.W. 561, LRA 1918B 156, Ann Cas 1918A 583.
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, 40 N.D. 299, 305, 168 N.W. 835, 837, 5 A.L.R. 731.
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, 40 N.D. 299, 308, 168 N.W. 835, 838, 5 A.L.R. 731. What provision of the Constitution does this law violate? "He who alleges a statute to be unconstitutional must be able to point to the particular constitutional provision violated." State ex rel. Linde v. Taylor, supra. Certainly it does not violate § 83 of the Constitution and this is the only section which by any stretch of imagination can be said to be affected. This section does not say the legislature may not at any time provide that under certain conditions a gubernatorial appointee may appoint private counsel to appear for the state in matters in which the state is interested. It places no limitation on legislative action. The legislature could limit the powers of the attorney general to purely criminal proceedings; to the giving of opinions. It could authorize any department of the government to employ its own counsel in any matter. In prescribing the duties of the attorney general it could enact an all-comprehensive *Page 430 statute or it could limit the appearance of the attorney general to any matter which it saw fit. Before such a subsequent enactment can be said to be unconstitutional, it must be shown clearly, unequivocally and to a moral certainty, that the department in whom legislative power of the State is lodged has manifestly violated the Constitution after giving to the proposed law the fair meaning of the language used. This court said in State v. Rother, 56 N.D. 875, 886, 219 N.W. 574, 578: "The object of all interpretation and construction of statutes is to ascertain and carry out the intention of the lawmakers. . . . The remedy for . . . an unwise statute is not in interpretation, but in amendment or repeal."
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, 82 Ohio St. 376, 92 N.E. 486, 487, 19 Ann Cas 918, we find: "The province of construction is to ascertain and give effect to the intention of the Legislature, but this intent must be derived from the legislation, and not be invented by the court. To supply the intention and then give the statute effect according to such intention would not be construction, but legislation."
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. *Page 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. 71 N.D. 630, 635, 3 N.W.2d 463, we say "mere anxiety of parties and their consent are not sufficient to vest this court with jurisdiction to decide a constitutional question."
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 *Page 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." 16 N.D. 476, 114 N.W. 962. It is the mere "office" not "powers" that are mentioned in the Constitution. The opinion says, that if the legislature could modify or infringe on these "inherent functions" of the officers involved, then what is to hinder the legislature from divesting the governor, and the judges of their inherent functions, and why has not the legislature "the power to provide for the appointment of a special enforcement governor . . ., or a special enforcement court? The answer is that the Constitution "vests" the executive power in a governor, and the judicial power in the courts, and the Constitution specifies the exclusive powers of the governor and of the courts, but it does not with those of the attorney general. And yet this opinion does say: "We do not deny the power of the legislature to prescribe the duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand; but we deny its power to strip such offices, even temporarily, of a portion of their inherent functions and transfer them to officers appointed by central authority."
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 *Page 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 *Page 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.