Walker v. Weilenman

On petition for rehearing.

STRUTZ, Judge.

The plaintiffs have filed a petition for rehearing in which they set out a number of reasons why the court should reverse its decision in this case or, in any event, should grant the plaintiffs a rehearing. Many of the plaintiffs’ contentions are without any merit, and need not be discussed. However, one or two of the issues raised should be considered.

*696The plaintiffs state that:

“The 1963 Act specifically requires state review before final action on dissolution and annexation.”

Since the order of dissolution of Walker and Golden Wealth school districts and the order of annexation of these districts to the Selfridge School District were made in 1964, and the action to declare such orders void was commenced in September of 1964, although not tried until May of 1965, the provisions of the 1963 Act would be controlling. If, therefore, the 1963 Act did require State review before action on dissolution and annexation became final, as contended for by the plaintiffs, our decision previously rendered would be erroneous.

Section 2 of Chapter 145 of the 1963 Session Laws amended Section 15-22-22, North Dakota Century Code, which provided for the dissolution of school districts and the attachment of such dissolved districts to adjoining districts. This amendment specifically provided:

“ * * * The order shall become effective upon the adoption of the resolution, unless another effective date is provided for therein, * *

The order referred to is the order of dissolution and attachment of the dissolved school district to an adjoining school district. The language quoted is so clear and unambiguous that no further comment need be made.

But the plaintiffs contend that Chapter 147 of the 1963 Session Laws must be read and considered in conjunction with the provisions of Chapter 145; that they both were enacted by the same session of the Legislative Assembly and, in fact, they both were signed on the same day by the Governor. A reading of Section 3 of Chapter 147 of the 1963 Session Laws, however, discloses that its provisions apply to voluntary proposals for the alteration of school districts. The provisions of Chapter 145 of the 1963 Session Laws, on the other hand, apply to dissolution and annexation of school districts when the assessed valuation of the district has been reduced to a certain level, or when any school district has not operated a school for the immediately preceding two years. The dissolution and attachment under consideration in this action was brought under the provisions of Chapter 145 of the 1963 Session Laws. Such dissolution and attachment was not voluntary on the part of the school district. The law providing for dissolution and annexation of school districts applicable in this proceeding, and which was in force at the time of the dissolution and annexation order in this case, specifically states:

“ * * * The order shall become effective upon the adoption of the resolution, unless another effective date is provided for therein, * *

The provisions of Chapter 147 would not apply to the dissolution and annexation under consideration in this case.

That the Legislative Assembly took the same view is clear from the fact that the 1965 Legislature did amend Section 15-22-22 of the North Dakota Century Code, which had been amended by Chapter 145 of the 1963 Session Laws. The 1965 amendment provided that, in dissolution and annexation proceedings such as we have here under consideration,

“ * * * The order shall become effective July first following the date of the order or resolution and after approval by the state board of public school education, * * * ” [Sec. 2, Chap. 130, 1965 S.L.j

If the contention of the plaintiffs is meritorious, then the 1965 amendment would have been unnecessary, for such approval already would have been required under the provisions of Chapter 147 of the 1963 Session Laws.

The plaintiffs’ further argument, that the 1965 amendment requiring approval by the State Board of Public School Education is a clear indication of what the *697Legislature intended by its earlier enactment of Chapter 145 of the 1963 Session Laws, is without merit. The provisions of Chapter 145 are clear and unambiguous. That chapter specifically provides that an order of dissolution and annexation, such as we have under consideration in this case, shall become effective “upon the adoption of the resolution, unless another effective date is provided for therein,” and such clear, unambiguous language is not subject to judicial construction.

One other contention is made by the plaintiffs in their petition which we believe should be considered. They state that the Attorney General’s opinion referred to in our decision is not an official opinion of the Attorney General of the State of North Dakota since it was written by the First Assistant Attorney General and “did not have endorsed thereon the approval of the Attorney General either by initial or otherwise.” The plaintiffs contend that an opinion of an Assistant Attorney General is not an official opinion unless the Attorney General himself endorses his approval on such opinion.

This clearly is not the law in North Dakota. Our Constitution provides that the powers and duties of the Attorney General shall be prescribed by law. Sec. 83, N.D. Constitution. By law, the Legislature has authorized the Attorney General to appoint certain assistants. The Attorney General and his assistants are further authorized to institute actions whenever “in their judgment” it is in the best interests of the State to do so. The Attorney General may also “personally or through his assistants” make investigations of any matter properly referred to him. Chap. 54 — 12, N.D.C.C. The Attorney General is not required to act personally in every matter or to approve all acts of his assistants. The opinion of the First Assistant Attorney General is, in our opinion, the opinion of the Attorney General even though such opinion is not personally signed or initialed by the Attorney General himself.

We adhere to our decision heretofore rendered. The petition for rehearing is denied.

TEIGEN, C. J., C. F. KESLCH, District Judge, and ERICKSTAD and KNUDSON, JJ-, concur.