Counsel for both parties to this proceeding have petitioned for a modification of the opinion of the court as heretofore handed down. In view of these petitions and of what is said in the dissenting opinions we deem it proper, though at the cost of no little repetition to file this additional opinion.
It is urged by counsel for the respondent that the following language in the opinion of the court, "Presumptively the statute was constitutional. It was the law until the court declared to the contrary. The respondent's duty was to act in compliance with the law; not to pass upon its propriety," is if not erroneous at least confusing and dangerous in that it is said "It was the law until the court declared to the contrary." Of course the rule is that every part of an opinion must be read and construed in the light of its setting and in connection with all the other portions thereof. So read we think that not only is *Page 273 the statement not erroneous but that it is not subject to any misconstruction. The presumption is that all legislative enactments are constitutional, and, in cases of doubt, the doubt must be resolved in favor of their validity. This court has so held time and again, and we know of no case that holds to the contrary either in our own reports or in those of any other court. And the constitutionality of a statute cannot be raised by one whose rights it does not affect and who has no legal interest in defeating it. This rule is also without exception and we have approved and followed it time and again. It follows that as to all not thus affected by it every statute is entitled to recognition as the law until the contrary is judicially determined.
The decisive points in the instant case are as stated in the opinion heretofore filed, "Was it the respondent's official duty to question the validity of the enactment? Would she be personally affected if she did not do so and it is in fact unconstitutional?" She is not challenging its validity here as a taxpayer so she can be personally affected by failing to question its constitutionality only if her failure to do so constitutes a breach of her official duty whereby she will become liable on her bond. Now what are her duties as state auditor with respect to the payment of claims against the state? The powers and duties of the auditor are fixed by the legislature pursuant to the constitution. The statute, § 54-1001, subsection 21, Rev Code 1943, provides that the state auditor shall "draw warrants on the state treasurer for the payment of money directed by law to be paid out of the state treasury." It is true, as is stated in one of the dissenting opinions that the statute, subsection 1, of § 54-1001, Rev Code 1943, also provides that the auditor shall "superintend the fiscal affairs of the state," and in subsection 13 provides that he shall "audit all claims against the state, the payment of which is authorized by law." But this latter statute does not stop there. It reads, "Audit all claims against the state, the payment of which is authorized by law preliminaryto the audit by the state auditing board." Originally the statute read as quoted in the dissent. See, subsection 10, § 98, Rev Code 1895, found later *Page 274 as subsection 10, § 132, Comp Laws 1913. Section 98, supra, first appears in the Revised Code of 1895. In 1901 subsection 10 was impliedly repealed (see State ex rel. Langer v. Kositzky, 38 N.D. 616, 166 N.W. 534, LRA1918D 237) when the legislature saw fit to enact chapter 33 of the Session Laws of that year creating the state auditing board. The duties of this board were to audit all claims against the state that might come before it. The act further provided that the auditor should act as secretary of the board and should receive and file claims presented to him for payment and bring them before the board for action and that no warrants should be drawn by him except such as had been passed upon and approved by the board. This statute, amended and enlarged by chapter 227, Session Laws 1915, was continued in effect and appears as § 375, of the 1925 Supplement. Among other things, § 375 provided: "The state auditor shall act as secretary of the state auditing board, and shall receive and file for the consideration of the state auditing board, all accounts, claims or demands against the state, except . . . such others as are now specifically excepted by law. . . It shall be the duty of the state auditing board to audit all claims, accounts, bills or demands against the state, except . . . such others as are now specifically excepted by law." The provisions of the statute just above referred to are now found in the Revised Code of 1943, in §§ 54-1003, 54-1401, and 54-1403, and consistently, subsection 10, § 132, Comp Laws 1913, as amended in the 1943 Rev Code appears therein as subsection 13, § 54-1001, supra. Thus the legislature saw fit to and did diminish the powers and duties of the auditor and made him secretary and a member of the auditing board now consisting of the governor, the auditor, the secretary of state, the treasurer and the state examiner. So his audit is as designated; merely a preliminary audit, purely clerical in character. "There is no officer or officers whose duty it is to audit claims and accounts against the state, other than the state auditing board; and it is apparent that it is not the duty of this board to audit any claim or demand against the state that has been specifically excepted *Page 275 by law." See State ex rel. Langer v. Kositzky (ND) supra. In any event, as we have heretofore said, the statute, chapter 72, Session Laws 1945, here involved, provides that the legislative expenses shall be paid in the same manner as the regular per diem of the members is paid. See in this connection, § 54-1404, Rev Code 1943. It fixes the amounts to be thus paid and provides an appropriation therefor. Thus these claims for legislative expenses have been audited, approved and directed to be paid by legislative action and are not subject to the requirement that they be otherwise audited and approved. And this is the practice that has been followed since the first days of statehood.
The respondent, however, insists that notwithstanding the statutory provisions above referred to which denude the auditor of all discretionary powers respecting the payment of legislative expenses and expressly provide that he "shall draw warrants on the state treasurer for the payment of money directed by law to be paid out of the state treasury," she is nevertheless obligated by her oath of office — to support the constitution of the state and faithfully discharge the duties of her office to the best of her ability — to challenge the constitutionality of any statute providing for the payment of such expenses if she has any doubt as to its validity. It seems to us, however, that there is no ground for this contention. True, she is obligated to support the constitution but the constitution as it is judicially determined to be and not as she determines it to be. And the same oath obligates her to discharge the duties of her office as prescribed by the legislature pursuant to the constitution. The constitution leaves it to the legislature to say what the powers and duties of the state auditor and the attorney general shall be. It does not require these officers to take an oath to support the constitution. That requirement is imposed by the legislature and the legislature could have dispensed with it. Had it done so would the situation be at all different? Not at all. The statutes prescribing the duties of the auditor and of the attorney general must be read and construed together. So read the only reasonable construction is that the oath of office *Page 276 requires the auditor to perform the duties prescribed by the legislature unless and until the attorney general advises or the courts hold the statute prescribing those duties to be unconstitutional. To hold that the state auditor or any other state officer must, at his peril, pass upon the question of the constitutional validity of every statute under which he acts, would be, as we have heretofore said, both most harsh and unconscionable and could not be otherwise than detrimental to the efficient conduct of the public business. As is said in State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A.L.R. 362: "The contention that the oath of a public official requiring him to obey the Constitution places upon him the duty or obligation to determine whether an act is constitutional before he will obey it is, I think, without merit. The fallacy in it is that every act of the legislature is presumably constitutional until judicially declared otherwise, and the oath of office `to obey the Constitution' means to obey the Constitution not as the officer decides, but as judicially determined. The doctrine that the oath of office of a public official requires him to decide for himself whether or not an act is constitutional before obeying it, will lead to strange results and set at naught other binding provisions of the constitution." See, also, State ex rel. Clinton Falls Nursery Co. v. Steele County, 181 Minn. 427, 232 N.W. 737, 71 A.L.R. 1190.
It is clear the framers of our constitution intended that state officers should not be burdened with any such responsibility when they refused to require this court to render advisory opinions and provided for the office of attorney general. It is equally clear that the first legislature convened after the adoption of the constitution was moved by the same considerations when it enacted chapter 21, Session Laws of 1889-1890 providing the powers and duties of the attorney general and requiring among other things that he should "consult with and advise the governor and all other state officers and when requested give written opinions upon all legal or constitutional questions relating to the duties of such officers respectively" (§ 4, subsection 5) and "keep in his office a book in which he shall record all the *Page 277 official opinions given by him during his term of office which shall be by him delivered to his successor in office" (§ 4, subsection 10). These provisions have remained unchanged and are now found in § 54-1201, Rev Code 1943. While it would seem that a constitutional question is a legal question the legislature saw fit to specify not "legal questions" but "legal or constitutional questions." It thus, inferentially at least, differentiated between the two with the evident purpose of making more plain the legislative intent that the attorney general's advice on constitutional questions should be taken and followed by all state officers just as on all other legal questions.
It is argued that to hold the attorney general's advice should control in the above respects, is to empower the attorney general to supplant the court in determining whether a statute conflicts with the constitution. We can see no merit to this contention. The attorney general, an officer required to be learned in the law (see Enge v. Cass, 28 N.D. 219, 148 N.W. 607) no more supplants the court in passing upon the validity of a legislative enactment than the auditor or treasurer or any other officer not required to be a lawyer would in doing so. On the contrary, if such officers may disregard the provision made by the legislature for obtaining advice from the attorney general on constitutional questions and presume to pass upon such questions themselves, they will supplant that officer. But the attorney general does not, and is not intended to, supplant the courts in such cases. He gives his opinions for the guidance of the state officers until such questions as concern them are passed upon by the courts. His opinions, if followed in good faith, relieve them from responsibility and protect them. If they fail or refuse to follow his opinions they do so at their peril.
The respondent cites and relies upon cases from other jurisdictions as sustaining her position in the instant case. Analyzed, these cases invariably turn upon the point as to what is the duty of the officer who seeks to justify his refusal to comply with a statutory mandate on the ground that the statute is unconstitutional. Thus the case of State ex rel. University of Utah v. Candland, 36 Utah 406, 104 P. 285, 24 LRA(NS) 1260, *Page 278 140 Am St Rep 834, holds in effect that a ministerial officer who will under his oath of office violate his duty or who may otherwise render himself liable if he performs some act in compliance with the requirement of an unconstitutional statute, is entitled to raise the question as a defense in a mandamus proceeding to compel him to perform such act. Of course we do not disagree with the principle of this holding. As to this principle, there was unanimity of opinion in Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 A.L.R. 925. Our holding in the instant case is predicated on our statutory and constitutional provisions and the duties of the state auditor as we spell them out to be under those provisions. The case of Com. ex rel. Woodruff v. Lewis, 282 Pa. 306, 127 A. 828, is another case relied upon by the respondent. In the Lewis Case the court said respecting a statute providing that the auditor general must submit doubtful legal questions affecting the performance of his official duties to the attorney general and follow the advice given when received. "Evidently the reasons for requiring such legal difficulties or disputes to be referred was to obtain the advice of the department of justice in regard to them. It cannot be supposed the legislature intended that the asking should be perfunctory and the advice when received could be cast aside as valueless. The whole tenor of the statute is to the contrary and to adopt Such a conclusion would be to charge the legislature with directing a useless and foolish thing. A result which no coordinate branch of the government would ever assert unless no other course was open to it." This is exactly in line with the construction we have put upon our statute prescribing the duties of the attorney general to which we have heretofore particularly referred. Furthermore, we are convinced that a careful reading of the opinion in the Lewis Case as a whole warrants the conclusion that its reasoning logically pursued in the case at bar would compel the same result as that at which we have arrived. Of course, every part of an opinion must be read and construed in the light of its context and the law and facts before the court. Now what are the constitutional and statutory provisions considered in the Lewis Case? The constitution *Page 279 of Pennsylvania requires the auditor general to take an oath "to support, obey and defend" the constitution of that commonwealth. The statute provides that state officers must submit doubtful legal questions affecting the performance of their official duties to the attorney general and follow the advice given when it shall have been received. So the rationale of the opinion is that the official oath being required by the constitution the obligation to obey the constitution cannot be overridden by legislative action. Therefore, when the legislature provided that legal questions should be submitted to the attorney general and made no mention of constitutional questions, it could not have intended that constitutional questions should be so submitted for that would conflict with the constitutional duty imposed by the oath. Accordingly, the court drew a concededly fine distinction between a legal question and a constitutional question and held that though a state officer must submit legal questions to the attorney general and follow his advice when given, this requirement did not apply to constitutional questions. And so the auditor might defend in a mandamus proceeding brought to compel his performance of a statutory duty on the ground that the statute imposing that duty was unconstitutional.
The conclusion at which the court arrived in the Lewis Case logically follows its holding that though under the Pennsylvania constitution and statutes the auditor general was required to seek and follow the advice of the attorney general respecting legal questions affecting the duties of his office, yet under his official oath it was his duty to pass upon constitutional questions affecting the duties of his office himself. We held in our original opinion that the state auditor is required by our statute to submit constitutional as well as legal questions affecting his official duties to the attorney general and to follow such opinions as that officer may give him unless and until the courts hold to the contrary, and that consequently unless so advised by the attorney general he cannot in a proceeding in mandamus to require him to perform a statutory duty raise the unconstitutionality of that statute as a defense. After the *Page 280 most meticulous re-consideration of the questions involved in this proceeding we are but confirmed in what we said in the opinion heretofore handed down.
CHRISTIANSON, Ch. J., and BURKE, J., concur.