I agree that the decision of the trial court should be reversed; but I do not agree that the case either requires or justifies a determination of the questions sought to be raised by the defendant as to the constitutionality of chapter 170, Laws 1939. In my opinion no question of constitutionality is involved, — it was and is the duty of the state auditor to issue the warrants in question here without regard to whether said chapter 170 is or is not violative of the Constitution upon any of the grounds asserted by the state auditor.
For a number of years the laws of this state have required dealers in motor vehicle fuels to be licensed, and have required each licensed dealer to pay a "license tax of three cents per gallon on all motor vehicle fuel used and sold by him." The authority to issue licenses and to collect the license tax was conferred upon the state auditor. Initiated Measure, Laws 1927, p. 549; Laws 1929, chap. 166; Laws 1935, chap. 172. Chapter 170, Laws 1939, imposed upon each licensed dealer in motor vehicle fuel an additional "license tax of 1 cent per gallon on all motor vehicle fuels used and sold by such dealer," and provided that every such dealer should pay such tax "in the manner, at *Page 719 the times and to the officer specified in said initiated measure of June 30, 1926." Said chap. 170, further provided: "The proceeds of said special license tax of one cent per gallon is hereby appropriated and shall be allocated and transferred to the State Highway Fund as created by statute and be expended for such purposes only mentioned in the statute creating said State Highway Fund. . . ." Id. § 1.
The State Highway Fund was created by the Legislative Assembly in 1919. Laws 1919, chap. 182; 1925 Supplement, § 2976t15. In 1929 the Legislative Assembly enacted a law entitled "An Act regulating the business procedure of the department of state highways, the making, certification, auditing and payment of pay rolls and the making, certification and auditing of payment of contract estimates." Laws 1929, chap. 139. This Act provides:
"Whenever an estimate or allowance for payment, except a final estimate, or, payment subsequent to a final estimate, is allowed, or granted, on a contract entered into by the department of state highways and the same is vouchered by the department for presentation to the state auditor, . . . the chief engineer of the said department shall make the following certificate. . . ."
"After the same has been approved for payment by the secretary, or chief administrative officer, of the state highway department, the same shall be presented to the state auditor . . . for payment. The state auditor shall thereupon draw his warrant therefor as provided by law without submitting such voucher or claim to the state auditing board for examination and allowance. . . ." Id. § 4.
Chapter 170, Laws 1939, went into effect July 1st, 1939. It is undisputed that the state auditor at once assumed the duties which that law placed upon her, and collected from the licensed dealers in motor vehicle fuels the tax which it prescribes, and transmitted the moneys collected to the state treasurer, who in turn credited them to the State Highway Fund.
In the petition in this case it is alleged: "Between the 1st day of July, 1939 . . . and the 30th day of November, the above named respondent, as required by statute, collected from the licensed motor fuel dealers of this state a total sum of $320,069.95 representing one cent per gallon license tax levied and imposed under the provisions of chapter 170, . . . and has . . . deposited the same with the *Page 720 state treasurer . . . and that the said sum, and the whole thereof, has been credited by the said state treasurer to the said `State Highway Fund,' and is now there held subject to disbursement by the Department of State Highways and its State Highway Commissioner in the manner and for the purposes allowed by statute."
It is further alleged that there have been presented to the state auditor fifty-four "Intermediate Estimate Vouchers," aggregating in all $266,500.86, under contracts for the construction of highways, and that such vouchers bear the certificate of the Chief Engineer and the approval for payment by the State Highway Commissioner as required by chapter 139, Laws 1929. Copies of the vouchers, of the certificate of the Chief Engineer, and of the approval for payment by the State Highway Commissioner indorsed thereon, are attached to and made part of the petition.
These allegations are not denied, and stand admitted. In the return of the respondent, state auditor, it is alleged:
"That it is the duty of the state auditor to collect the special license tax of 1 cent per gallon imposed upon motor vehicle fuels by chapter 170, Session Laws 1939, and to pay the amount so collected monthly over to the state treasurer for the deposit thereof by him to the credit of the state."
"That your respondent as state auditor has collected approximately three hundred and twenty thousand dollars ($320,000.00) from the one cent special license tax, pursuant to chapter 170, Session Laws 1939, and that about one hundred and forty-one thousand, five hundred and twenty-three dollars ($141,523) of the total amount so collected was paid by the taxpayers to this respondent under written protest."
Under the Constitution the state auditor has such powers and duties as shall be "prescribed by law." N.D. Const. § 83.
The power and duty of the state auditor incident to the licensing of dealers in motor vehicle fuel, and the collection of the license taxes, are measured solely by the law which confers the power and imposes the duty. The legislature might have imposed that duty upon some other officer, or created a new office, and imposed the duty upon the incumbent of such office. The duty of the state auditor incident to the collection of a license tax from a dealer in motor vehicle fuel is terminated when the moneys she collects have been transmitted to the state *Page 721 treasurer. Her duty is then discharged, her control over the moneys and her responsibility for their safety and disbursement are terminated. People v. Williams, 3 Thomp. C. (N.Y.) 338.
This case involves no act which the respondent, state auditor, is required to perform under chapter 170, Laws 1939. It involves the drawing of a warrant or warrants which she is required to draw under chapter 139, Laws 1929, against a fund created by chapter 182, Laws 1919 (§ 2976t15 Supp.), — a fund into which moneys received from sources other than taxes collected under chapter 170, Laws 1939, also, are and have been allocated. The vouchers that have been presented to the state auditor are conceded to be in proper form, and represent valid obligations payable out of the State Highway Fund, — obligations that must be paid when there are moneys available in such Fund, even though none of the collections made under said chapter 170 went into the Fund. Under the plain words of chapter 139, Laws 1929, the state auditor has only a ministerial duty to perform as to the vouchers in question here. Clearly, there would be no personal liability on the part of the state auditor for the taxes she has collected and transmitted to the state treasurer under said chapter 170. People v. Williams, 3 Thomp. C. (N.Y.) 338, supra; 4 Cooley, Taxation, 4th ed. § 1629; 24 Cal. Jur. § 270; 61 C.J. pp. 1001, 1002, § 1279. The state has consented to be sued for any claim that may exist on account of taxes illegally collected from a taxpayer and paid into the state treasury. Ford Motor Co. v. State, 59 N.D. 792, 231 N.W. 883. Hence, in case taxes are collected illegally and paid into the state treasury, the legal responsibility and liability for reimbursement of the taxpayer is upon the state and not upon the collector. 61 C.J. pp. 1001, 1002, § 1279.
The function of this court "is to determine controversies between litigants." Langer v. State, ante, 129, 284 N.W. 238, 250; Self Insurer's Asso. v. State Industrial Commission,224 N.Y. 13, 119 N.E. 1027, 1028. The Constitution of this state deprives this court of power to give advisory opinions. It may properly decide a controversy only when the question in dispute is real and not merely abstract or hypothetical, and when it is raised by one who has an interest in and a legal right to raise it and asserted against one who has an adverse interest. *Page 722 Langer v. State, ante, 129, 284 N.W. 238. This court sits "not to review or revise the legislative action, but to enforce the legislative will" (Cooley, Constitutional Limitations, 7th ed. pp. 227, 228), and it is only when, in a justiciable controversy, a party who has an interest in and a legal right to raise the question that the court may determine whether a statute contravenes any provision of the Constitution.
"It is a firmly established principle of law that the constitutionality of a statute or ordinance may not be attacked by one whose rights are not, or are not about to be, adversely affected by the operation of the statute. This rule applies to all cases both at law and in equity, and is equally applicable in both civil and criminal proceedings. One of the many variations of this rule is the principle that one may not urge the unconstitutionality of a statute who is not harmfully affected by the particular feature of the statute alleged to be in conflict with the Constitution. A constitutional question may not be raised by one whose rights are not directly and certainly affected, nor in a case where no attempt is being made to enforce the provision attacked. In other words, one may attack the constitutionality of a statute only when and so far as it is being or is about to be applied to his disadvantage; and to raise the question he must show that the alleged unconstitutional feature of the statute injures him and so operates as to deprive him of a constitutional right, and, of course, it is prerequisite that he establish in himself the claimed right which is alleged to be infringed.
"It is not sufficient that the statute is unconstitutional as to other persons or classes of persons; it must affirmatively appear that the person attacking the statute comes within the class of persons affected by it." 16 C.J.S. pp. 157-164, § 76. See also 11 Am. Jur. 748-753, Constitutional Law, § 111.
The Supreme Court of the United States has said: "Only those whose rights are directly affected can properly question the constitutionality of a state statute, and invoke our jurisdiction in respect thereto." Hendrick v. Maryland, 235 U.S. 610, 59 L. ed. 385, 35 S. Ct. 140.
This rule was stated and applied by this court in King v. Baker, ante, 581, 288 N.W. 565, 566.
The general principle that the constitutionality of a statute cannot *Page 723 be questioned by one whose rights are not affected thereby, and who has no interest in defeating the enforcement and operation of the law is, of course, applicable to public officers. 11 Am. Jur. 762, Constitutional Law, § 117; 16 C.J.S. pp. 157, 173. While there is general agreement upon the principle, there is considerable contrariety in the adjudicated cases as to what clothes a public officer with sufficient interest to raise the question of constitutionality. It may be said, however, that the adjudicated cases all hold that the officer must have an interest, — either a personal interest or an interest arising because the duties of his office are such as to charge him with the requisite authority to attack the constitutionality of the statute.
No case has been cited, and none has been found, where a public officer charged with the duty of drawing a warrant in payment of a duly audited valid claim has been heard to say that certain moneys in the fund on which the warrant is required to be drawn are the proceeds of a tax that has been laid and collected under an unconstitutional statute, and, hence, may not be expended in payment of the warrant. An examination of the authorities cited in the prevailing opinion in this case discloses that in those cases the action sought to be enforced was one that was "directed" or "required" by the legislative enactment whose constitutionality was challenged, and which action would be illegal if the act were invalid. In the cases cited which involve the payment of claims, the validity and legality of the claims themselves were the issue, that is, the claims involved arose under and had their existence solely by virtue of the statutes which were assailed, and if the statutes were unconstitutional the payment of the claims would result in expenditure of public funds for a purpose that was forbidden by the Constitution. In the majority opinion some point is made that the advice of the attorney general is a circumstance tending to show that the state auditor has sufficient interest to raise the constitutional question, and the decision of the supreme court of Missouri in State ex rel. Wiles v. Williams, 232 Mo. 56, 133 S.W. 1, 34 L.R.A.(N.S.) 1060, is cited in support of the proposition. The case cited involved a warrant issued to a prosecuting attorney for salary. The Attorney General in discharge of his official duty rendered an opinion to the county court to the effect that the statute, under which the claim for salary arose, and under which the warrant was issued, was unconstitutional, and the *Page 724 county court, acting on such opinion, entered a formal order directing the treasurer not to pay the warrant, and informing him that he and his official surety would be held liable for any moneys of the county that were paid out upon the warrant. It is unnecessary to discuss whether the decision of the supreme court of Missouri was correct or incorrect — the decision obviously distinguishes itself from this case. In that case, too, the claim itself had its existence in a statute which was claimed to be unconstitutional. If the statute were invalid, there was no claim whatsoever and the county was not indebted upon the claim for which the warrant had been drawn.
In this case it does not appear that the respondent has been advised by the attorney general not to draw the warrants in question here. The only allegation in the return of the state auditor concerning the question of advice is to the effect that the respondent has "been informed and advised the fact to be that chapter 170, Session Laws 1939, is null and void and that your respondents, upon such advice, allege that chapter 170, Session Laws 1939, is unconstitutional in that it violates §§ 62, 64 and 186, as amended, of the state Constitution." Whether the advice referred to in the return of the respondent was given by the attorney general, and if so when it was given, is not stated.
As said, the vouchers in question here admittedly represent valid claims against the state. They did not arise under the statute which is claimed to be unconstitutional. They had their existence wholly outside of such statute. The respondent, state auditor, has not been asked to perform any act under the statute, the validity of which is assailed. The duty of the auditor to draw the warrants exists by virtue of a wholly different law. The respondent, state auditor, has performed every duty that the statute which is assailed imposed upon her. Taxes have been collected and the proceeds transmitted to the state treasurer. Taxes have been collected for more than six months, and there is no claim that any suit for recovery of the taxes said to have been paid under protest has been instituted. State ex rel. Cole v. Miller, 38 Nev. 494, 151 P. 943. The greater portion of the taxes have been paid without any protest. Such taxes were paid to the respondent under the terms of the law and with the unquestioned representation to the taxpayers that the moneys paid would be expended for the purposes specified in the statute and not otherwise. *Page 725
In my opinion, the respondent, state auditor, cannot be heard to say that said chapter 170, or any part thereof, is unconstitutional. She has no such interest as to entitle her to raise the constitutional question. She has no personal interest that can possibly be affected. She is charged with no official duty which will be violated by the performance of the act sought to be enforced in this proceeding. No public interest would be subserved if the contention of unconstitutionality were sustained. In no event, can the state auditor be heard to say that the moneys collected as taxes under chapter 170, Laws 1939, do not belong in the fund in which the taxpayers who made such payments were informed by the terms of the act that the moneys would be placed. Read v. Newark, 103 N.J.L. 60, 134 A. 757; Liberty Twp. v. Hutchinson County, 7 S.D. 530, 64 N.W. 1117. See also People v. Williams, 3 Thomp. C. (N.Y.) 338, and State ex rel. Cole v. Miller, 38 Nev. 494, 151 P. 943, supra.
Inasmuch as the court, speaking through the majority, holds that the constitutional questions raised by the respondent, state auditor, are here for determination, I deem it proper to say that I agree with the views expressed on such questions in the prevailing opinion. I am authorized to say that Judge Burke concurs in this opinion.
BURKE, J., concurs in dissenting opinion.