This proceeding was instituted to compel the respondent, the state auditor, Berta E. Baker, to draw warrants for money claimed to be due them by members of the legislative assembly pursuant to the provisions of House Bill 84, enacted into law by the Twenty-ninth Legislative Assembly of the State of North Dakota. See chapter 72, Session Laws 1945.
House Bill 84 provides that each member of the legislative assembly of the State of North Dakota shall be entitled to and shall receive the sum of three hundred dollars as reimbursement for his living expenses for each legislative session, to be paid in the same manner as the regular per diem of the members is paid. It also appropriated funds for the payment thereof. Vouchers for such expenses in the proper form were duly presented to the respondent. She refused to draw warrants for their payment. The state, on the relation of the attorney general, then brought this proceeding, and invoking the original jurisdiction of this court upon the ground that the controversy involved the sovereign rights of the state, its franchises and prerogatives, applied for a mandatory writ directing the respondent auditor to issue the warrants. See North Dakota Constitution, § 87; State ex rel. Goodwin v. Nelson County, 1 N.D. 88, 45 N.W. 33, 8 LRA 283, 26 Am St Rep 609; State ex rel. Steel v. Fabrick, 17 N.D. 532, 117 NW 860; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, LRA1918B 156, Ann Cas 1918A 583; State ex rel. Graham v. Hall,73 N.D. 428, 15 N.W.2d 736 Whereupon this court assumed jurisdiction and issued its order
directed to the respondent to show cause why the writ should not issue as prayed.
In her answer and return to the order to show cause, the auditor admits her refusal to draw the warrants in question and justifies it on the ground that there is grave doubt as to the constitutionality of House Bill 84, because of the provisions of § 45 of the Constitution of North Dakota, which provides:
"Each member of the legislative assembly shall receive as 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." And in that behalf she alleges:
"That the validity of the said House Bill 84 is at least in grave doubt, similar statutes having been held unconstitutional and invalid in many other states as the respondent is informed and believes, although other states have declared them valid. That the appropriation therefor contained in H.B. 84 is $50,000 and the disbursement from the general fund of the state due as soon as the payrolls are presented to the respondent after the close of the legislative session involve, as the respondent is informed and believes, a total of more than $48,000.
"That it is a matter, therefore, of great importance to the respondent in the due and proper discharge of her duties to safeguard the funds of the state of North Dakota and to make no disbursement therefrom improperly or illegally, and to have the validity of the said statute determined before the disbursement thereof, to avoid liability under respondent's official bond, and particularly in view of the fact that if it should be declared by the courts of this state that the said act is invalid, after the disbursement of any of the said funds it would be the duty of the respondent, under the provisions of subsection 20b of § 54-1001, Rev Code 1943, to forthwith institute an action in the name of the State against the recipients of the said funds to compel their return to the state.
"Wherefore, the respondent prays that the above entitled proceeding be dismissed, that no peremptory writ be issued to the
respondent unless the court determines in the above entitled proceeding that the said House Bill 84 is valid and constitutional and that the respondent receive her costs and disbursements herein."
In short, the respondent admits her refusal to issue the warrants and justifies it by reason of her grave doubt as to the constitutionality of the statute in question and, in effect, asks an advisory opinion from this court as to its constitutionality, since, as she alleges, if she issues the warrants and the statute is unconstitutional she will have violated her duty under her oath of office and become liable on her official bond.
The relator challenges the sufficiency of this return. He contends the statute is constitutional and valid but that, in any event, whether or not this be so the auditor is merely a ministerial officer; that her duty prescribed by House Bill 84 is to draw warrants for the expenses of the members of the legislative assembly when proper vouchers are presented and warrants are demanded; that she will violate no duty and will suffer no injury by so doing; that accordingly she has no personal interest in and cannot question the constitutionality of the statute. On the other hand, the respondent contends that she is a constitutional officer; that as such she is charged with the duty of conserving the public funds; that while she is required pursuant to § 54-1001, Rev Code 1943, to draw warrants for the payment of money directed by law to be paid out of the state treasury, § 54-1002 provides that warrants shall not be drawn unless there are funds in the treasury applicable to the payment thereof to meet the same; that if House Bill 84 is unconstitutional there is no law either authorizing and directing the issuance of such warrants or appropriating funds applicable to the payment thereof, and, accordingly the drawing of the warrants will be violative of the duty of the respondent and will render her liable under her oath on her official bond; that consequently she is in duty bound to question the constitutionality of the statute and has the right to do so because she will be affected by it.
In view of the issues thus raised it may be well to state here certain principles this court has heretofore pronounced or
approved and followed that must be looked to in considering them. In the first place, this court may not render advisory opinions. See § 96, North Dakota Const.; State ex rel. Olsness v. McCarthy,53 N.D. 609, 207 N.W. 436; Langer v. State, 69 N.D. 129, 284 N.W. 238. When the legislature speaks, the people speak. Murphy v. Townley,67 N.D. 560, 274 N.W. 857. ". . . all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of government, or expressly withheld from the legislature by constitutional restrictions. . . . Constitutional provisions are in the nature of grants of power to the executive and judiciary, but are limitations upon the power of the legislature." State ex rel. Standish v. Boucher, 3 N.D. 389, 56 NW 142, 21 LRA 539; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 NW 561, LRA1918B 156, Ann Cas 1918A 583, supra. So all legislative enactments are presumed to be constitutional and in all cases of doubt the doubt must be resolved in favor of their validity. Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 LRA 838; State ex rel. Linde v. Taylor (ND) supra; State ex rel. Linde v. Packard, 35 N.D. 298, 160 N.W. 150, LRA1917B 710; State ex rel. Kaufman v. Davis,59 N.D. 191, 229 N.W. 105. In Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 LRA 838, supra, this court said:
"We must remember that legislative power is primarily plenary, and that constitutions are not grants of, but restrictions upon, that power. Hence he who would challenge a legislative enactment must be able to specify the particular constitutional provision that deprived the legislature of the power to pass the enactment. We must remember that it is the duty of courts to reconcile statutes with the constitution when that can be done without doing violence to the language of either, and in all cases of doubt, the doubt must be resolved in favor of the constitutionality of the statute. This much deference the judicial department of government owes to the legislative."
The constitution itself speaks to the same effect, for § 89 thereof provides: "The supreme court shall consist of five judges, a majority of whom shall be necessary to form a quorum or pronounce a decision . . .; provided, however,
that in no case shall any legislative enactment or law . . . be declared unconstitutional unless at least four of the judges shall so decide." And the constitutionality of a statute will be considered only when the question is properly before the court and necessary to a determination of the cause. Olson v. Ross,39 N.D. 372, 167 N.W. 385; Goer v. Taylor, 51 N.D. 792, 200 N.W. 898; State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105, supra; Federal Land Bank v. Johnson, 67 N.D. 534, 274 N.W. 668; State ex rel. Bank v. Weiler, 67 N.D. 592, 275 N.W. 67. It logically follows that the question of 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. Mohall Farmers' Elevator Co. v. Hall,44 N.D. 430, 176 N.W. 131; Goer v. Taylor, 51 N.D. 792, 200 N.W. 898, supra; Department of State Highways v. Baker, 69 N.D. 702, 290 NW 257, 129 ALR 925. See also Encyclopedia of U.S. Supreme Ct. Reports, p. 74, and cases cited in notes.
Obviously, in the light of the foregoing principles, the first matter for our consideration is whether the respondent may challenge the validity of House Bill 84, for if she may not, we should go no further and the writ for which the relator prays must issue. It is equally obvious that the respondent's challenge must be denied unless she can show it is her official duty to question the validity of the enactment or that she will be otherwise personally affected if she does not do so and it is in fact invalid. Of course, under the facts here, she can be personally affected by failing to question its constitutionality only if her failure to do so constitutes a breach of duty whereby she will become liable on her official bond.
The question as to the right of ministerial officers, such as the state auditor, to raise the point that an enactment under which they are required to act is unconstitutional and therefore invalid, is one that frequently has been before the courts and there is a diversity of holding in the decisions touching that question. This is demonstrated by a reading of the following cases and the cases cited in their appended notes. See State ex rel. University of Utah v. Candland, 36 Utah 406, 104 P. 285, 24 LRA(NS) 1260, 140 Am St Rep 834; State ex rel. Atlantic
Coast Line R. Co. v. Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 ALR 362; State ex rel. Clinton Falls Nursery Co. v. Steele County, 181 Minn. 427, 232 N.W. 737, 71 ALR 1190; Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 ALR 925, supra. And many other cases might be cited to the same effect. In practically all of these cases, however, notwithstanding their diversity of holding on the point with which we are now concerned, the courts recognize the principle that the constitutionality of a statute cannot be questioned by one whose rights it does not affect and who has no interest in defeating it. And where it is held that a ministerial officer may raise the question it is because injury to himself might result or a violation of duty be imputed to him on account of his failure to do so. So in fact the diversity of holding is more apparent than real and exists rather because of differences in facts or of statutory or constitutional provisions or their interpretation and application rather than on account of departure from the generally recognized principle.
The question now before us is not a new one in this state. It arose first in the case of McDermont v. Dinnie, 6 N.D. 278, 69 NW 294, decided in 1896, where McDermont, claiming to be the duly elected and qualified municipal judge, pursuant to the provisions of the statute creating that office and providing the salary therefor, sought by mandamus to compel the issuance to him of a warrant for his salary by the mayor and the auditor of the city of Grand Forks. These officers justified their refusal to issue the warrant on the ground the statute in question was unconstitutional and therefore void. The petitioner contended that the respondents could not question the validity of the statute in a mandamus proceeding brought to compel the performance of their statutory duty. But the court, overruling this contention considered the statute and passed upon its validity. The court disposed of the point rather summarily, merely saying: "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 and illegal claims. The writ cannot be invoked to compel an officer to do an illegal act."
The question next came before this court in 1916, in the case of State ex rel. Miller v. Leech, 33 N.D. 513, 157 N.W. 492, where, in a mandamus proceeding the respondent justified his refusal to perform the act sought to be coerced by the relator on the ground that the statute on which the relator relied was unconstitutional. The relator raised the point that the unconstitutionality of the act in question could not be asserted as a justification or defense in mandamus. The court, Judge Goss writing the opinion, said:
"Thus arises a perplexing question upon which the courts in the various jurisdictions are much divided, if not in hopeless conflict. For every decision upon one side of the question one can be found on the other. Two basic lines of reasoning are pursued. The one, that an unconstitutional statute is not law for any purpose, and therefore can be challenged by anyone in any direct proceeding. The other rule, supported by the greater weight of authority, is based largely upon governmental policy, and virtually prohibits a ministerial officer from challenging the constitutionality of a legislative act, except where he is personally interested, as, by reason of a disbursement to be made thereunder for which he is financially responsible. This upon the theory in the main that courts should accept as final the acts of the legislature and discourage attacks upon them, except where necessary to protect the private interests of the individual asserting invalidity and peculiarly and particularly affected thereby. Under the great weight of authority this public official could not, under ordinary circumstances, raise this question in mandamus. Dean v. Dimmick, 18 N.D. 397, 122 N.W. 245; 26 Cyc 156; and notes in 47 LRA 512-519; 24 LRA(NS) 1260; and 34 LRA(NS) 1060. Thus he could not have raised it of his own volition had no other assessment been attempted or made than an assessment of these parties by the State Tax Commission. 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 alternatives 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, 34 LRA(NS) 1060, 133 S.W. 1. . . ."
In Mohall Farmers' Elevator Co. v. Hall, 44 N.D. 430, 176 N.W. 131, supra, decided in 1920, the plaintiff sought by mandamus to compel the secretary of state to receive and file a corporate certificate. The defendant Hall, secretary of state, demurred to the petition on the ground it did not state facts sufficient to constitute a cause of action for the reason that the statute on which the petitioner relied was unconstitutional and void. The petitioner challenged the right of the defendant to question the constitutionality of the statute. This court, sustaining the challenge, overruled the demurrer, saying:
"Under the general principle that the constitutionality of a statute cannot be questioned by one whose rights it does not affect, and who has no interest in defeating it, the question has frequently arisen whether a public officer has such interest as entitles him to question the constitutionality of a statute and refuse to comply with its provisions. There is considerable conflict in the authority upon the general proposition whether, in an action to enforce the performance of a statutory duty by a ministerial officer, he may question the constitutionality of the statute imposing the duty. In some cases the right is denied. In other cases it is held that the constitutionality of a statute imposing a duty may be questioned under certain circumstances. 12 CJ 765.
"It has been said that the `better doctrine, supported by an increasing weight of authority, is that a mere subordinate ministerial officer, to whom no injury can result and to whom no violation of duty can be imputed by reason of his complying with a statute, will not be allowed to question its constitutionality; but that the constitutionality of a statute may be questioned by an officer who will, if the statute is unconstitutional, violate his duty under his oath of office, or otherwise render himself liable, by acting under a void statute.' 12 CJ 765. See also 6 RCL p 92, § 92. This principle was recognized in State ex rel. Miller v. Leech, 33 N.D. 513, 157 N.W. 492, where this court held that under the great weight of authority a public official cannot, under ordinary circumstances, raise the question of constitutionality in a mandamus proceeding; but that under the peculiar facts in that case (where the county auditor was required to determine whether to recognize the assessment which had been made by the state tax commission, or the assessment which had been made by the local assessor and reviewed and equalized by the local and the county boards of equalization) the county auditor might assert, in defense of his official action in recognizing one assessment and refusing to recognize the other, that the law under which the latter assessment was attempted to be made was unconstitutional. But no such condition exists in this case as that which existed in State ex rel. Miller v. Leech (ND) supra. Here the defendant is not required to determine which of two conflicting official acts he must recognize; or which of two conflicting statutes is valid. Here the statute is plain, and defendant can incur no liability by performing the acts which the statute says he shall perform. If the statute is unconstitutional, it is so solely because it violates the constitutional rights of stockholders who do not consent to a change of the corporation to the co-operative plan.
"It is not contended that any right of the state or the public generally is in any manner violated or impaired. We are of the opinion that the secretary of state cannot be heard to assert in this proceeding that the rights of nonconsenting stockholders have been or may be violated. Such stockholders are the
proper parties to defend their rights, and the law affords them ample remedies for that purpose."
Again, in Goer v. Taylor, 51 N.D. 792, 200 N.W. 898, supra, decided in 1924, where plaintiffs as members of the State Bar Board sought a judgment declaring a statute appropriating moneys in the Bar Board fund to be unconstitutional and void, and restraining the defendants from expending the money thus appropriated as authorized and directed by the statute, this court sustaining a demurrer to the complaint held that a public officer whose individual rights are not affected by a statute and who has no personal interest in defeating it, cannot question its constitutionality. And in Department of State Highways v. Baker,69 N.D. 702, 290 N.W. 257, 129 ALR 925, supra, decided in 1940, where the state auditor, acting on the advice of the attorney general, justified her refusal to perform a statutory duty on the ground that the statute was unconstitutional, this court held as stated in the syllabus:
"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 the constitutionality of the statute imposing such duty.
"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 are based."
A careful consideration and review of the foregoing cases decided by this court, warrants the conclusion that in none of them is there even an expression inconsistent with the proposition stated in the first paragraph of the syllabus in Department of State Highways v. Baker (ND) supra, just above quoted. Certainly the McDermont v. Dinnie Case, 6 N.D. 278, 69 NW 294,
supra, on which respondent greatly relies, says nothing inconsistent with it. That case merely holds that an officer may challenge the constitutionality of a statute when to pay out municipal funds pursuant to its provisions would constitute a violation of his official duty. So, whether the respondent in the instant case may challenge the constitutionality of House Bill 84, supra, depends upon the answer to the question as to whether she will violate an official duty if she fails to do so because of any doubt she may have as to its constitutionality. Thus it becomes necessary to determine what the duty of the respondent was under the circumstances shown in the instant case.
The state auditor is a constitutional officer. His duties, however, are prescribed not by the constitution but by legislative enactment. See §§ 82 and 83, ND Const. In that behalf the legislature has spoken. See Chapter 54-10, comprising §§ 54-1001 to 54-1011, 1943 Rev Code. Section 54-1001 provides that among other powers and duties the state auditor shall superintend the fiscal affairs of the state; audit all claims against the state, the payment of which is authorized by law preliminary to the audit by the state auditing board; and draw warrants on the state treasury directed by law to be paid out of the treasury. Section 54-1002 provides that a warrant shall not be drawn by the auditor unless authorized by law and there are funds in the state treasury to meet the same. But § 54-1003 provides that all claims against the state, except as otherwise provided by law, must bear the approval of the auditing board. See also Chapter 54-14, comprising §§ 54-1401 to 54-1406, Rev Code 1943. So the real duty of saying whether claims not otherwise directed to be paid are proper and shall be paid, devolves upon the auditing board and not upon the auditor. As to claims otherwise directed to be paid, neither the auditing board nor the auditor has any discretion. And it must be borne in mind, insofar as the claims for legislative expenses are concerned, that they have been audited, approved, and directed to be paid by legislative action. And this has been the practice followed without question throughout the history of the state. As to such claims there is no question of fact to be determined; no room
for the exercise of discretion. The only question is one of law as to whether the statute is within the power of the legislature to enact. With respect to these claims the auditor's duty is purely ministerial. 43 Am Jur 75, Public Officers, § 258, and cases cited; 46 CJ p 1036, and cases cited.
The respondent, however, argues that pursuant to the provisions of Chapter 54-10, in superintending the fiscal affairs of the state and performing the other duties prescribed thereby, she is of necessity required under her official oath — prescribed not by the constitution but by the statute, § 44-0105, Rev Code 1943 — to determine at her peril whether any statute providing for the drawing of warrants for the payment of moneys of the state is valid and within the constitutional power of the legislature to enact, and if she draws a warrant for payment, though she has been authorized and directed to do so by legislative enactment and that enactment is subsequently held to be unconstitutional, she is derelict to her duty and becomes personally liable on her official bond. She insists that this is so because by her oath of office she has obligated herself to support the constitution of the state and faithfully discharge the duties of her office; that if the legislature exceeds its power and enacts an unconstitutional statute, such enactment is void and there is no law, and, therefore, when she draws a warrant pursuant to the requirement of such void enactment she draws one not authorized by law and thereby becomes liable. By parity of reasoning her position must be that she likewise acts at her peril and is liable on her bond for damages, if any result, and for costs necessarily entailed, if, as in the instant case, she doubts that a statute is valid and so refuses to act as required by it and the court subsequently holds she is wrong and the statute to be valid. Now the state auditor is not required to be a lawyer or to be learned in the law. Neither the constitution nor the statute presupposes that he shall be. And it seems to us it would be a harsh and unconscionable doctrine to apply that where a ministerial officer acts in good faith and in compliance with the mandate of a statute that is subsequently held to be invalid, or when he refuses to act because he doubts its validity and it is later held to be
valid, he becomes responsible under his oath on his official bond; to hold, in other words, that every such officer who is required to subscribe to the official oath in order to qualify performs his statutory duty in every case at his peril. Such a doctrine would be not only harsh and unconscionable, but also would be most detrimental to the efficient conduct of governmental affairs. For if this rule be applicable to one ministerial officer, it would seem to be equally applicable to any other such officer required to take the official oath. We can see no distinction in this respect between a subordinate and a superior officer. Surely the framers of the constitution did not contemplate any such purpose and consequence. This in clearly evidenced by the record of the Debates of the Constitutional Convention when in considering the question as to whether the judges of the supreme court should be required to give advisory opinions, reference was made to the duties of the attorney general. See Langer v. State, 69 N.D. 129, 284 N.W. 238, supra, where, after an examination of the Constitutional Debates, this court said:
"The question whether the judges of the supreme court should be required to give advisory opinions was considered with much care in the North Dakota Constitutional Convention. After the Convention had agreed to adopt § 96 of the Constitution, which provides: `No duty shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial.' (ND Const. § 96) it was proposed that the following provision be placed in the Constitution: `The Judges of the Supreme Court shall give their opinion upon important questions of law and upon solemn occasions, when required by the Governor, the Senate or the House of Representatives; and all such opinions shall be published in connection with the reported decisions of said court.' Debates, Constitutional Convention (ND) p 228.
. . . . . . . . . . . .
"Judge Lauder, speaking in opposition to the proposed provision requiring judges of the supreme court to give advisory opinions, said in part): `The gentleman from Burleigh has evidently forgotten that in all human probability we will have
in this state an officer designated as the attorney general, whose peculiar business it will be to advise the state officers and the legislature when called upon. . . . The attorney general is the officer to advise the civil officers, and when questions come before the supreme court, that court is then untrammeled. . . .'
"Senator Johnson said, in part: `The premises of the gentleman from Burleigh are perfectly correct, namely, that the officers of the state and the legislature should have some guide in legal matters. So far, so good; we concede that, but his logic is wrong — his conclusion is fallacious. He draws the conclusion that the only way to get this legal advice is to put it in the Constitution that the appeal for legal information shall be made to the supreme court. We have a department specially provided to fill that — it has come down from the tradition of our fathers. . . . That is exactly the province of the attorney general in the state — that is the province of the attorney general at Washington.' Debates Constitutional Convention (ND) p 274." Langer v. State, 69 N.D. 129, 284 N.W. 238, 251.
And the legislature made plain that no such responsibility should be imposed upon any ministerial officer of the state and acted affirmatively to absolve him from it when, at the first session of the legislative assembly after the adoption of the constitution, it enacted § 4 of Chapter 21, of the Session Laws of 1889-1890 defining the powers and duties of the attorney general, now found practically word for word as § 54-1201, Rev Code 1943. And, in this connection, it must be remembered that many of the members of the first legislative assembly were men who had participated actively in the framing of the constitution and must have prescribed the duties of the attorney general in the light of their understanding of its provisions.
The attorney general also is a constitutional officer. His powers and duties like those of the auditor are not prescribed by the constitution but by legislative enactment. See §§ 82 and 83, ND Constitution. Chapter 54-12, comprising §§ 54-1201 to 54-1211, Rev Code 1943, prescribes those powers and duties. Section 54-1201, supra, provides that among other duties the attorney general shall "appear for and represent the state before
the supreme court in all cases in which the state is interested as a party, appear and defend all actions and proceedings against any state officer in his official capacity. . . . If both parties to an action are state officers, the attorney general may determine which officer he will represent; Consult with and advise the governor and all other state officers, and, when requested, give written opinions on all legal or constitutional
questions relating to the duties of such officers respectively; Give written opinions when requested by either branch of the legislative assembly upon legal questions; keep in his office a book in which he shall record all the official opinions given by him during his term of office, such book to be delivered by him to his successor in office." Thus the attorney general is made the legal adviser of both the legislative assembly and the state officers and it is particularly to be noted that he shall give written opinions to the legislative assembly upon legal questions and shall consult with and advise the governor and all other state officers and, when requested, give opinions not only on alllegal questions but also on all constitutional questions relating to the duties of such officers. And the opinions so written must be recorded in a book which must be delivered to his successors in office. Reading this statute we can reach no other conclusion than that the legislature, thus imposing these duties upon the attorney general, made him the chief law officer of the state — the responsible legal adviser for the state auditor as well as for the other state officers, whose opinions shall guide these officers until superseded by judicial decision; that it took note of the fact that these officers are not required to be learned in the law and contemplated that when any constitutional or other legal question arises regarding the performance of an official act their duty is to consult with the attorney general and be guided by the opinion which that officer, if requested to do so, must give them. If they follow this course they will perform their duty, and even though the opinion thus given them be later held to be erroneous, they will be protected by it. If they do not follow this course, they will be derelict to their duty and act at their peril.
At this point we refer again to Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 ALR 925, supra, and particularly to the second paragraph of the syllabus therein heretofore quoted. What we have said above is wholly consistent with the holding in the Department of State Highways Case — indeed, that case on its facts is the obverse of the instant case. In that case the respondent (also the respondent in the instant case) as she should have done, sought the advice of the attorney general who gave her his opinion that the statute there involved was unconstitutional. Pursuant to this advice she refused to act as required by its terms. Thereupon a proceeding in mandamus was instituted to compel performance. The respondent justified her refusal to act on the ground that the statute was unconstitutional. We held that under those circumstances she could challenge the statute. The writer of the opinion in the instant case refused to concur in all that was said in the opinion there, but, agreeing with the propositions of law stated in the syllabus, concurred in the result. On oral argument in the instant case it was stated without challenge or denial, that when House Bill 84 was pending in the legislative assembly that body requested an opinion of the attorney general as to its constitutionality and he in response to that request gave his opinion that it was within the power of the legislature to enact. It likewise was stated that the respondent was apprised of the legislative request and of the attorney general's opinion and its content and purport. Further, that the matter was discussed orally by respondent and the attorney general and she was then told that should she request a written opinion one would be given to her to the same effect and that even if the statute were later held unconstitutional she would be under no personal liability if guided by the opinion she issued warrants pursuant to the terms of the statute.
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. If she doubted its validity her duty was to consult and advise with the attorney general, the chief law officer of the
state, and to act in accordance with such opinion as he might give her. She did not do this but, contrary to the opinion which she knew he would give her, took it upon herself to say that the statute was unconstitutional. Under these circumstances she could not justify her refusal to comply with its terms in response to the order to show cause and so the petitioner's challenge to that return was good. Accordingly, pursuant to the rule heretofore stated that the constitutionality of a statute will be considered only when the question is properly before the court and necessary to a determination of the cause, we will not pass upon the constitutionality of House Bill 84.
We have given this case the most meticulous consideration. The point on which it turns is of very great public importance. Not only is every ministerial officer entitled to have defined with certainty the course he should follow when called upon to act pursuant to the terms of a statute of questionable constitutionality, but every citizen also is entitled to be informed as to what he may expect to be done in such case.
The writ will issue as prayed.
CHRISTIANSON, Ch. J., and BURKE, J., concur.