Upon this appeal serious considerations are involved concerning the constitutionality of chap. 69, Laws 1919; particularly that portion thereof appropriating out of the State Bar Fund $10,000.00 for purposes that have heretofore been considered subject matter of disbursement out of the general funds. Of this, every member of this court, participating as such in the consideration of this appeal, is cognizant. There are at least serious questions presented concerning the validity of the act with respect to the appropriation of $10,000.00 out of such fund in view of §§ 61 and 62 of the Constitution. Pursuant to this act, authority has been granted to expend $10,000.00, so appropriated out of this State Bar Fund, under the direction of this court, for the purchase and repair of books in the State Law Library. Manifestly, state officials whose duties concern the disbursement of public monies, as well as this court, are vitally *Page 805 interested in the validity of this law. If the law be constitutional this court, for evident reasons, should so declare. Otherwise, this court is faced with the necessity of construing, off the record, the constitutional right to disburse the funds appropriated which now it ought to determine upon an issue with a record.
The majority opinion dismisses this action upon the highly technical ground that plaintiffs have not any right to maintain the suit. It must be noted that this is an action which seeks to enjoin state officials from carrying out or enforcing a statute alleged to be unconstitutional. The State Bar Board, who are state officers (concerned with the imposition and collection of a state regulatory tax as the majority opinion has found) and concerned with the admission and disciplining of attorneys who are officers of the court, seek to restrain other state officers. In this court the respondent state officers raise no question of the right of such Bar Board to maintain this action. The trial court determined the issue upon the merits, namely, that the act was constitutional. In my opinion, under the circumstances, the determination thus made by the majority opinion serves to bring the administration of justice into disrepute and, further, upon the record, is unwarranted.
Upon this record, with no objection being voiced in this court concerning the title of the action or the rights of the Bar Board to maintain the action, this action may be treated, as it is in its essence, as an action brought by the State on the relation of the Bar Board to enjoin other State officials concerning an act alleged to be unconstitutional. Manifestly, the attorney general, as relator, could have maintained such an action. Manifestly, a private relator, as a citizen, tax payer, or a person interested could have likewise maintained such action upon a showing that the attorney general would appear or had appeared for the defendant state officials. In this case the defendants are represented by the attorney general. This court, in the exercise of its original jurisdiction, has witnessed many cases where similar action has been recognized on the part of a relator, either private or holding official position. Thus, State ex rel. Bauer v. Nestos, 48 N.D. 894, 187 N.W. 233, 619, to restrain the Industrial Commission from carrying out a certain contract; State ex rel. Rusk v. Budge, 14 N.D. 532, 105 N.W. 724; from carrying out a law alleged to be unconstitutional and so held; State ex rel. Farmers State Bank v. Wallace, 48 N.D. 803, *Page 806 187 N.W. 728; to restrain the tax commissioner from collecting certain taxes under a law claimed to be unconstitutional; State ex rel. Linde v. Taylor, 33 N.D. 76, L.R.A. 1918B, 156, 156 N.W. 561, Ann. Cas. 1918A, 583; action by a representative of a bonding company to restrain state officials from enforcing or putting into effect the State Bonding Law; other similar cases might be cited. This action in its essence is an action by the State; it involves the vindication of law; it involves sovereign rights; it is a case of strictly public concern involving state franchises and state privileges; as such, the state is the real party; the relator a mere incident. State ex rel. Remington v. Aandahl, 47 N.D. 179, 181 N.W. 596; State ex rel. Linde v. Taylor, 33 N.D. 76, 83, L.R.A. 1918B, 156, 156 N.W. 561, Ann. Cas. 1918A, 583. The relator brings the public injury to the attention of the court. It, by virtue of its constitutional power, commands that the suit be brought by and for the state; the private relator may have a private interest which may be distinguished, if it be severable, from the public interest, yet, the state proceeds to vindicate the public right; see State ex rel. Remington v. Aandahl, supra. But, it may be urged that such cases relate to the exercise of original jurisdiction by this court and hence have no application. The reply may be made that the original jurisdiction of this court is not any more comprehensive under constitution or statute than the original jurisdiction of the trial court. This court's original jurisdiction may be invoked only in a certain class of cases where cases are publici juris and only as a matter of grace. The trial court's jurisdiction may be invoked as a matter of right. A cause of action here is a cause of action there. In fact this court may refuse to exercise its original jurisdiction upon a cause of action for the reason that adequate relief may be secured in the trial court. State ex rel. Madderson v. Nohle, 16 N.D. 168, 125 Am. St. Rep. 628, 112 N.W. 141.
Predicated upon such principles the question is now presented of the right of the State Bar Board to present the issues involved as relators.
In 1919 the legislature provided for a State Bar Board and imposed upon the members constituting such Bar Board certain duties and obligations. It established a fund known as the State Bar Fund composed of license fees required to be paid by all practicing attorneys in the *Page 807 state and set the same aside in an appropriate fund, out of which only could be disbursed expenditures made by the State Bar Board. Laws 1919, chap. 69. In 1921 a Bar Association, composed of all practicing attorneys who had paid their license fees, was created by legislative act as a corporation and, to it, the legislative act granted out of the State Bar Fund a sum of money not exceeding $3.00 per member for purposes of expenses in connection with such Bar Association. Laws 1921, chap. 25. This act was amended in 1923 by increasing the amount to $5.00 per member. Laws 1923, chap. 133.
The original act creating the Bar Board provided for the appointment of members thereof by the Governor and their due qualification as members of the Board by taking an oath and furnishing a bond. Under the act duties were imposed upon this Board to examine applicants for admission to the Bar; to issue annual licenses to practicing attorneys; to investigate charges of misconduct against attorneys, when so directed by this court, and to make report thereupon concerning their conclusions and recommendations. In the performance of their duties this Bar Board were granted the authority to employ such assistance, purchase such supplies and incur such expense as may be necessary to carry on their work, subject to the provision, however, that their expenditures must remain within the sums derived from fees paid to said State Bar Fund. It is a matter of common knowledge, which this court judicially knows, that fees paid by applicants for admission to the Bar are placed in, and become a part of, this State Bar Fund. Thus, it may be seen that the State Bar Fund is constituted from fees paid to the State Bar Board; that these fees result in the performance of duties and obligations imposed upon the State Bar Board; that the State Bar Board have authority to create expenditures and to secure payment thereof only to the extent that there are and remain sufficient funds for payment in the fund; that, pursuant to the duties imposed upon the board, the fund may be subjected to expenditures for investigation concerning charges made against attorneys which may subject the fund to greater or lesser disbursement in accordance with the number of charges that may be made or directions that the Supreme Court may make to the board concerning such investigations.
In my opinion, the State Bar Board, as such, stand in a much better position than a mere taxpayer who, as a party, might have maintained *Page 808 this action. They are State officers concerned with duties, obligations and rights in the creation, maintenance, and disbursement of the State Bar Board which they have created through the exercise of their duties and powers pursuant to the law. A mere taxpayer on the other hand is in fact benefited by the disbursement through the appropriation challenged, for the reason that it necessitates that much less to be expended out of general funds to be raised by general taxation. In the instant case, if the State Bar Board are not proper parties to initiate this action, who might be proper parties? Apparently, the lawyers, or any of them, could not be, because, as the majority opinion concludes, they have voluntarily paid their dues. If thus it be, because they, or any one of them, did not register a protest except off the record, then, it may possibly be asserted that they, or any one of them, had little idea that their money, thus freely given, would be used for purposes different than the purpose for which it was contributed.
In view of the decision made by the majority opinion, it is needless in my opinion, to enter into a discussion concerning the constitutional questions presented by parties upon this appeal. With due respect to the opinions of my associates I must respectfully protest against the technical determination made in this action.
Justices BIRDZELL and CHRISTIANSON, being disqualified, did not participate, Honorable GEO, M. McKENNA, Judge of Third Judicial District, and Honorable THOS. H. PUGH, Judge of Sixth Judicial District, sitting in their stead.