This is an original proceeding in the Supreme Court. The relator seeks a peremptory writ directing the State Auditor, Berta E. Baker, to issue warrants for the payment of certain sums claimed to be due to the members of the Twenty-Ninth Legislative Assembly under the provisions of House Bill No. 84. The State Auditor questions the constitutionality of the act and refuses to make the payments therein provided.
We determined that this controversy involves the rights, franchises and privileges of the State Government and have, therefore, assumed original jurisdiction. State ex rel. Langer v. Kositzky, 38 N.D. 616, 166 N.W. 534, LRA1918D 237; State ex rel. Wallace v. Kositzky, 44 N.D. 291, 175 N.W. 207; State ex rel. Sundfor v. Thorson, 72 N.D. 246, 6 N.W.2d 89, 143 A.L.R. 599; State ex rel. Graham v. Hall, 73 N.D. 428, 15 N.W.2d 736; State *Page 262 ex rel. Birdzell v. Jorgenson, 25 N.D. 539, 142 N.W. 450, 49 LRA(NS) 67.
We are met with a threshold question by the challenge of the attorney general to the right of the state auditor to raise the question of the unconstitutionality of the statute. He argues that the state auditor is a ministerial officer and that the duty of that officer to issue warrants against funds in the hands of the state treasurer does not authorize her to challenge the constitutionality of the statute under which she is called upon to act. The decisions of the courts of other states are not in accord on this question. Holdings are not always completely in accord in the same state. Generally it is held that a subordinate ministerial officer to whom no injury can result and to whom no violation of duty can be imputed by reason of compliance with the statute may not question its constitutionality. That rule has many exceptions and refinements of application. This court early crossed this stream of uncertainty in the case of McDermont v. Dinnie, 6 N.D. 278, 69 N.W. 294. That case involved the constitutionality of a statute establishing municipal courts in cities having populations of 5000 or over and abolished police magistrate courts in such cities. A judge of the municipal court in Grand Forks, who had been elected and qualified under the statute, presented to the mayor and auditor of the city vouchers for his salary. These officials refused to draw the salary warrants. A proceeding in mandamus was brought to compel the issuance of these warrants. The question of the right of the mayor and auditor to refuse to perform their ministerial duties in issuing the warrants upon the ground that the statute was unconstitutional was presented to the court. It is the identical question that we now have before us with respect to the State Auditor. In disposing of that question the court said:
"Nor is there, in our judgment, any force in the point that these defendants cannot raise the question of the unconstitutionality of this statute. They are municipal officers, charged by their oaths of office with the duty of protecting the funds of the municipality. It would be a violation of their official duty should they proceed to pay out the funds of the city upon unwarranted *Page 263 and illegal claims. The writ cannot be invoked to compel an officer to do an illegal act. State ex rel. Diebold Safe Lock Co. v. Getchell, 3 N.D. 243, 55 N.W. 585."
This court has approached the question somewhat demurely in two later cases. State ex rel. Miller v. Leech, 33 N.D. 513, 157 N.W. 492, involved the right of a county auditor to challenge the constitutionality of a statute under which certain tax assessments were made. In that opinion it was said:
"He could not have refused to obey the commands of the Commission arbitrarily or capriciously, for the mere purpose of having a mooted point of law decided in this assessment matter, and in the absence of a court decision passing upon the constitutionality of this act. But under the circumstances in which this official found himself placed, one or the other alternative must be followed. He must choose and under his official oath must follow the law to the best of his ability. And when acting as he has here, inasmuch as he is represented throughout these proceedings by the state's attorney of the county, elected to advise him with other county officials in such dilemmas, his decision under legal advice upon the law is required by these petitioners. State ex rel. Wiles v. Williams, 232 Mo 56, 133 S.W. 1, 34 LRA(NS) 1060. And under such circumstances, in a matter of this importance, he may invoke the unconstitutionality of the law under which an apparently regular proceeding by taxation, a prima facie valid tax, has resulted and is sought to be overthrown by a purported substituted assessment. `In cases where the duty to perform an act depends solely on the question whether a statute or ordinance is constitutional and valid, the question may sometimes be determined on a petition for mandamus.' 26 Cyc 156. While courts should be slow to entertain suits invoking constitutionality, yet the circumstances here are exceptional and unusual. The public is interested in having a decision upon who has the power to assess this class of public utilities. Every county auditor and many other local taxing officials are confronted yearly with this question, as is every owner of this class of property throughout the state. The matter might be considered as involving questions publici juris." *Page 264
In the case of Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 A.L.R. 925, in a paragraph of the syllabus agreed to by a majority of the court, two members dissenting, we said:
"2. Under the circumstances in this case wherein it appears that the state auditor is a constitutional officer against whom a proceeding is brought to compel her to disburse public funds under a statute which the attorney general, who is her legal adviser and is also a constitutional officer, has advised is unconstitutional, and the question of constitutionality is of great public importance affecting many people, the public revenue of the state and one of the major departments of the state government, it is held that the state auditor may question the constitutionality of the statute upon which the proceedings axe based."
In the opinion in that case prepared by the writer and concurred in by Judge Burr a number of cases in other jurisdictions are discussed. Without repeating that discussion I will make further comment and cite other cases.
In Denman v. Broderick, 111 Cal. 96, 43 P. 516, the issue is raised as to the right of the auditor of a city and county to refuse to draw a warrant for the salary of a member of the board of election commissioners upon constitutional grounds. The court summarily disposed of the question with the statement that:
"We see no force in the point that the respondent has no interest in the question here involved. The act under which petitioner claims being unconstitutional and void, there is no law authorizing respondent to draw the warrant; and to do the act demanded of him would be to violate his official duty and oath, and subject himself to liabilities and penalties."
In State v. Snyder, 29 Wyo. 163, 212 P. 758, a proceeding in mandamus was brought against the state treasurer to require the apportionment of the school funds as desired by the relators. The treasurer challenged the constitutionality of the statute under which the relators sought to compel him to act. The court said:
"We think, in the first place, that the Treasurer of the state, *Page 265 as custodian and conserver of the funds, has sufficient interest therein so as to raise the question whether or not the legislative acts in question are in conflict with the Constitution, in an action in mandamus where it is sought to compel him to pay out the said funds or a portion thereof."
In Com. v. Lewis, 282 Pa. 306, 127 A. 828, the attorney general filed a petition in mandamus seeking to compel the auditor general of the state to follow the advice of the attorney general and approve the payment of a number of requisitions on legislative appropriations. Pennsylvania had a statute not only making it the duty of the attorney general to furnish legal advice to administrative departments but also requiring the officers of the state to follow the advice given them by the department of justice and relieving them from any liability for so doing, upon their official bonds or otherwise. The court held that the statute was inapplicable to a question involving the constitutionality of a statute and that despite the advice of the attorney general the auditor general was entitled to raise the question of the constitutionality of the statutes under which it was sought to compel him to act. See also Com. ex rel. Atty. Gen. v. Mathues, 210 Pa. 372, 59 A. 961.
In Montpelier v. Gates, 106 Vt. 116, 170 A. 473, it was held that the state auditor of accounts and other state fiscal officers could question, in a mandamus proceeding, the constitutionality of an act appropriating for municipalities certain sums from intangible taxes. In that case it is said:
"It is argued that these defendants, for lack of interest in the result, cannot question the constitutionality of this act. There has been some conflict in the decisions on this question. But it has come to be quite generally held — upon sound legal principles, we think — that where, as here, the officer involved is not a ministerial officer of subordinate authority, but one who will, under his oath of office, violate his duty or otherwise render himself liable by the performance of the act enjoined upon him by the statute in question, if invalid, he is sufficiently interested to enable him to raise the question of the validity of the statute in a mandamus proceeding to compel him to comply therewith." *Page 266 (Citations including McDermont v. Dinnie, 6 N.D. 278, 69 N.W. 294, supra, omitted.)
"This must be so if, as we are taught, an unconstitutional statute is a mere nullity that confers no rights, imposes no duties, and affords no protection. Then, too, these defendants are, in a very real sense, the custodians and conservators of the public funds, which they are forbidden to disburse except as the Legislature appropriates them. It is their sworn duty to execute their respective offices `according to law.' Upon the plainest legal principles, they have the right to raise the constitutional questions here presented."
In this state the auditor is a constitutional officer whose powers and duties are prescribed by law. Section 83, ND Constitution. Section 54-1001, Rev Code 1943, prescribes the powers and duties of the state auditor, the first of which is stated as follows:
"The state auditor shall: 1. Superintend the fiscal affairs of the state;".
Par. 21 of the same section requires the auditor to "draw warrants on the state treasurer for the payment of money directed by law to be paid out of the state treasury." Section 44-0105, Rev Code 1943, provides that the state auditor shall take the oath prescribed in § 211 of the North Dakota Constitution, which requires that the officer will support the Constitution of the United States and the Constitution of the State of North Dakota and faithfully discharge the duties of the office which he holds according to the best of his ability. Thus we find the state auditor here to be in a situation similar to that of the mayor and city auditor in McDermont v. Dinnie (ND) supra.
In 16 CJS on page 175 we find the following comment after a review of seemingly conflicting authorities:
"Notwithstanding these various conflicting views it is generally held that the constitutionality of a statute authorizing disbursement of public funds may be questioned by the officer on whom the duty of disbursement is imposed, although there is also authority to the contrary." *Page 267
Thus it appears that the weight of authority supports McDermont v. Dinnie. The cases holding to the opposite view are not sufficiently impressive in either number, weight or reasoning to warrant the discard of the precedent thus established.
The importance of the constitutional question raised by the state auditor, to both the state government and the public, as well as the closeness of the constitutional question involved, is indicated by the history of the act. At the 1943 session of the legislature a similar act was passed and vetoed by the then governor. That veto message appears on p 480, Sess Laws ND 1943, and reads as follows:
"I am filing herewith Senate Bill No. 78 for an Act providing for reimbursement for living expenses of the members of the State Legislature while in attendance at the session, and making an appropriation therefor, without my approval.
Of course, the members of the Legislative Assembly should receive greater compensation. Five dollars per day as fixed by the Constitution may have been reasonable in 1889, but today it is barely sufficient to pay the living expenses of the members while attending the session, and neither affords them any compensation for their services nor does it provide for the expenses which many members are forced to incur through hiring of others to do their work at home during their absence.
However, I am convinced that this Act is unconstitutional. Section 45 of the North Dakota Constitution reads as follows:
`Each member of the Legislative Assembly shall receive as a compensation for his services for each session, five dollars per day, and ten cents for every mile of necessary travel in going to and returning from the place of the meeting of the Legislative assembly, on the most usual route.'
The overwhelming weight of authority, under similar Constitutional provisions, is against its validity. The reasons for this view are set forth fully in Dixon v. Shaw, 50 A.L.R. 1233, and the cases supporting that view are collected in the note to that decision and in the note following Peay v. Nolan, 60 A.L.R. 408.
It is evident that the members of the Legislative Assembly entertained doubts as to the constitutionality of this measure, *Page 268 as they adopted House Concurrent Resolution X which proposes a constitutional amendment to achieve the same purpose. I believe that this is the proper procedure, and I sincerely hope the amendment may be approved by the people.
In view of the fact that the constitution restrains the legislative assembly from increasing the salaries of other state officers during the terms for which they have been elected, I doubt the public policy of the legislative assembly in increasing the remuneration of its own members during their present terms, regardless of technical exactness as to whether the additional remuneration be termed compensation or personal expenses."
The veto was sustained and the legislative assembly then incorporated the act into a proposed constitutional amendment (ch 98, Sess Laws ND 1943). The proposed amendment was submitted to the people at the next primary election and defeated by a narrow margin.
This act, House Bill No. 84 of the Twenty-ninth Legislative Assembly, was vetoed by the present governor. The veto message reads as follows:
"I am herewith returning without my approval House Bill Number 84, An Act for Allowance of Expenses of Members of the Legislative Assembly, Making an Appropriation, Declaring an Emergency.
In the public mind there is some question about the constitutionality of this Bill. The Attorney General has indicated to me that it is the opinion of his office that this Bill is constitutional. In support of his opinion is the decision of the Supreme Court of South Dakota in upholding the constitutionality by a three to two vote on a similar statute passed in 1921 by the Legislative Assembly of that State, and also the decision of the Supreme Court of the State of Washington handed down in February, 1941, in which by a seven to two decision it upheld the constitutionality of a similar statute passed in that State. Where the line is as closely drawn as it is in this case we could pass the matter on to the Attorney General and the Supreme Court to make the final decision. *Page 269
As Governor I must base my decision on this Bill upon the question of public policy and also upon the question of the wishes of the people.
Since 1889 we have held the popular interpretation that the salary and the expense as measured by the mileage allowance is determined by the Constitution for the members of the Legislature, and that there should be no change without Constitutional Amendment. This has been good public policy. In the difficult task that the Legislature has of holding down the requests for increased appropriations and the requests for increased salaries for others it is desirable that they be armed with the fortitude of knowing that they will not and can not increase their own salaries either by direct salary adjustment or indirectly through the allowance of expense money. I do know that that is the majority of opinion that has prevailed among the members of our Legislature for over fifty years, and I don't think that it should be changed now.
That the compensation for the members of the Legislature is too low there is no question. I urge you to pass a concurrent Resolution providing for a Constitutional Amendment and sincerely hope that the people will approve it."
Thus the law in question has been vetoed by two successive chief executives of the state. In the first veto message the view that the act is unconstitutional is clearly expressed. In the second message the doubtful constitutionality of the act is discussed at some length but the decision of the chief executive is finally put upon public policy. The legislature overrode the second veto.
The South Dakota case referred to in the veto message of the present governor is State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993. That case deals with an analogous situation. The constitution of South Dakota fixed the compensation of judges and certain state officers. The legislature passed an act providing a lump sum monthly allowance for moving and living expenses. The constitution, in addition to prescribing compensation, forbade judges to receive any compensation, perquisites or emoluments for or on account of his office in any form *Page 270 whatsoever except salary. In the case of the other state officers, it forbade the receipt of fees or perquisites for the performance of any duties connected with their offices, and prohibited the legislature from increasing their salaries.
All judges being disqualified, the case was heard before a specially constituted court, consisting of members of the Bar, which reached the conclusion that such allowances were not compensation and that the provision for payment of the expenses of the respective judges and officers did not amount to an increase in salary; hence, the legislative provisions were not unconstitutional.
The opposite conclusion was reached by the Supreme Court of Iowa in Gallarno v. Long, 214 Iowa 805, 243 N.W. 719. The Iowa court cites a large number of cases in support of its view that the law is unconstitutional and severely criticizes the South Dakota decision.
In three recent decisions acts similar to ours are held to be constitutional and valid by divided courts. These cases are Peck v. State, 63 Idaho 375, 120 P.2d 820, two judges dissenting; State ex rel. Todd v. Yelle, 7 Wash. 2d 443, 110 P.2d 162, two judges dissenting; and Collins v. Riley, 24 Cal. 2d 912, 152 P.2d 169, two judges dissenting. It is interesting to note that the California and Washington cases involved mandamus proceedings brought to compel the drawing of warrants. The question of constitutionality was raised in each case by the officer whose duty it was to draw the warrants. The right of the officer to raise the question of constitutionality does not seem to have been questioned in those cases and is not commented upon by the courts.
The views of two governors set forth in their veto messages, the conflicting decisions of the courts and the conflicting views of the judges as disclosed by the dissenting opinions, demonstrate that the question is one of great importance and that the constitutionality of the law now before us is surrounded by considerable uncertainty. The fact that the majority opinions in the more recent decisions tend to support the constitutionality of the act in question does not militate against the right of the *Page 271 state auditor to challenge its constitutionality and have the validity of the law determined before issuing warrants thereunder against the public funds of the state.
In the opinion prepared by Judge Nuessle great stress is laid upon the effect of the opinion of the attorney general. The rule thus advanced confers upon the attorney general powers that neither the constitution nor the law prescribing his duties contemplates should be vested in him.
"1. The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. It imposes no duties, confers no rights, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it." State ex rel. Tharel v. Creek County, 188 Okla. 184, 107 P.2d 542.
"The courts alone are by the organic law empowered to authoritatively declare or to adjudge a statute to be in accord with or in conflict with the Constitution, so that the statute, if valid, stands, or, if contrary to organic law, will by the operation of the Constitution be rendered invalid from its enactment. 12 CJ 800. The opinions of officials and of attorneys and others that a statute is valid may be persuasive in a judicial determination of the matter, but such opinions, and acts done pursuant to such opinions, do not affect the power and duty of the court to adjudge a statute to be in conflict with organic provisions, when in the judgment of the court there is such conflict; nor do such opinions and acts affect the operation of the dominant force of the Constitution in rendering the statute inoperative ab initio, to the extent that it conflicts with the superior law as judicially determined.
If a legislative enactment conflicts with an existing provision of the Constitution, such enactment does not become a law." State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298.
I cannot accede to a doctrine that would require a coordinate constitutional officer, such as the state auditor, to comply with an unconstitutional legislative enactment and deplete the public *Page 272 treasury on the strength of a void statute because the attorney general has erroneously said that the statute is valid.
I quote from these cases not to intimate that the law in question is unconstitutional but to demonstrate the danger of adopting a rule that would empower the attorney general, even in a limited degree, to supplant the court in determining whether a statute conflicts with the constitution.
We should not direct a writ to the issue without first passing upon the state auditor's challenge to the constitutionality of the statute and thus determining whether the payment which we command to be made is lawful.