This is an original proceeding in the supreme court on the relation of Nelson A. Mason, praying for a writ of injunction
restraining the state auditor and state treasurer from disbursing any of the $35,000 appropriation provided for in the Recodification Act, chapter 110 of the 1939 Session Laws. The petition sets forth the petitioner's interest in the matter, the public nature and importance thereof, the consent of the attorney general to this proceeding, the enactment of said chapter 110, the intention of respondents to proceed thereunder, that such act is unconstitutional and void in that it imposes upon the supreme court duties other than judicial and confers upon the judges thereof powers of appointment in violation of § 96 of the state Constitution.
To this petition, respondents interpose a demurrer and motion to dismiss.
No objection is made to the method of proceeding, and the court deems the matter of sufficient importance to warrant its assuming original jurisdiction. State ex rel. Lofthus v. Langer, 46 N.D. 462, 177 N.W. 408; State ex rel. Wallace v. Kositzky, 44 N.D. 291, 175 N.W. 207.
The law in question provides that the supreme court is authorized and directed to select and employ not more than three persons, resident of the state and learned in the law, to be known as the Code Revision Commission; that such Commission, acting under the supervision of the supreme court, shall continue to date the annotations of the Constitution, prepare, annotate and index a complete set of rules of practice and procedure for all courts of the state, including rules and regulations for admission to and disbarment from practice of law; to revise, annotate and index the laws of the state; that the proposed code shall become effective when enacted by the legislature, and such rules and regulations for admission to and disbarment from practice shall become effective when promulgated by the supreme court; that if the proposed Revision Code is enacted by the legislature, such Commission shall continue until the code is printed and bound, and in that connection shall advertise for bids, specify the type of printing and binding and let a contract therefor when approved by the Chief Justice; the supreme court shall have control over the making of all contracts, disbursement of all moneys appropriated, and may discharge any commissioner or employee and fill any vacancy.
The section of the Constitution claimed to be violated is number 96:
"No duties shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial, nor shall any of the judges thereof exercise any power of appointment, except as herein provided."
In this state, as in all other states of the Union, the essential functions of government are divided among three departments, the legislative, executive, and judicial. This court has early held that these grants were in their nature exclusive and that neither department could exercise any of the functions of the other. State ex rel. Standish v. Boucher, 3 N.D. 389, 56 N.W. 142, 21 L.R.A. 539. Section 96 also provides that only judicial duties may be exercised by the supreme court, but such provision does not alter the general principle embraced in the maxim "Separation of the powers of government."
It is therefore necessary to consult authorities for the principles to be applied in determining whether the duties conferred upon the supreme court by the Recodification Act are not judicial.
"Judicial power determines what the law is, and what the rights of the parties are with reference to transactions already had, and whenever an act undertakes to determine a question of right or obligation or property, as the foundation upon which it proceeds, such act is to that extent a judicial one." State ex rel. Miller v. Taylor, 27 N.D. at p. 87, 145 N.W. 425.
"`On general principles, those inquiries, deliberations, orders and decrees which are peculiar to such a department must in their nature be judicial acts.' . . . The judicial department of government is that department which it was intended should interpret and administer the laws. . . . Judicial power is authority vested in some court, officer, or person to hear and determine when the rights of person or property, or the propriety of doing an act are the subject matter of adjudication. . . . Official action, the result of judgment or discretion, in such case is a judicial act." State ex rel. Standard Oil Co. v. Blaisdell, 22 N.D. 86, at p. 95, 132 N.W. 769, Ann. Cas. 1916E, 1089.
"The distinction between legislative or ministerial functions and judicial functions is difficult to point out. What is a judicial function does not depend solely on the mental operation by which it is performed or the importance of the act. . . . As to what is judicial
and what is not seems to be better indicated by the nature of a thing than its definition." 6 R.C.L. p. 159.
"Indeed, there is not a single Constitution of any state in the Union which does not practically embrace some acknowledgment of the maxim (Separation of the powers of government to be administered by the three arms of government separately) and at the same time some admixture of powers constituting an exception to it." See, Re Minneapolis, St. P. S. Ste. M.R. Co. 30 N.D. 221, at p. 226, 152 N.W. 513, P.U.R.1915D 434, Ann. Cas. 1917B, 1205.
"Notwithstanding the general rule, however, the legislature may clothe judges with powers which are not by their nature either exclusively judicial or nonjudicial, and also with such minor executive and ministerial functions as may be necessary to the proper operation of the system of government established by the Constitution." 33 C.J. 960; 12 C.J. 874 (376).
"All powers, however, even though not judicial in their nature, which are incident to the discharge by the courts of their judicial functions are inherent in the courts, and the exercise of such powers by the courts is not forbidden by constitutional provision for the division of the powers of government among the several departments." 12 C.J. 873.
Our laws were compiled in 1913, and in 1925 a Supplement covering subsequent legislation was provided. Since then, separate volumes for each session of the legislature have been published, a total of seven; besides pamphlets covering special sessions. During that period there has been much new legislation and many amendments, many of which contain a general repeal clause. The result is that no one can be sure that he has seen all the laws on a given subject or knows just what laws are in force. It is of the utmost importance, not only to the bar and the public generally, but to the courts, that the Constitution and all the laws of the state be continued to date, annotated, revised and indexed.
The sole purpose of the Recodification Act is to make easily available for the courts and for the attorneys (who are officers of the courts) all constitutional provisions, statutes and judicial decisions. Under present conditions, with an ever increasing volume of legislation and decisions, the courts would be unable to function without systematic arrangement of the laws and adequate digests and annotations. It is therefore competent for the legislature to authorize the supreme court
to exercise such functions as are necessarily connected with the performance of its judicial duties, although such acts may be of a ministerial or executive nature.
In Re Revisor of Statutes, 141 Wis. 592
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This is an original proceeding in the supreme court on the relation of Nelson A. Mason, praying for a writ of injunction
restraining the state auditor and state treasurer from disbursing any of the $35,000 appropriation provided for in the Recodification Act, chapter 110 of the 1939 Session Laws. The petition sets forth the petitioner's interest in the matter, the public nature and importance thereof, the consent of the attorney general to this proceeding, the enactment of said chapter 110, the intention of respondents to proceed thereunder, that such act is unconstitutional and void in that it imposes upon the supreme court duties other than judicial and confers upon the judges thereof powers of appointment in violation of § 96 of the state Constitution.
To this petition, respondents interpose a demurrer and motion to dismiss.
No objection is made to the method of proceeding, and the court deems the matter of sufficient importance to warrant its assuming original jurisdiction. State ex rel. Lofthus v. Langer, 46 N.D. 462, 177 N.W. 408; State ex rel. Wallace v. Kositzky, 44 N.D. 291, 175 N.W. 207.
The law in question provides that the supreme court is authorized and directed to select and employ not more than three persons, resident of the state and learned in the law, to be known as the Code Revision Commission; that such Commission, acting under the supervision of the supreme court, shall continue to date the annotations of the Constitution, prepare, annotate and index a complete set of rules of practice and procedure for all courts of the state, including rules and regulations for admission to and disbarment from practice of law; to revise, annotate and index the laws of the state; that the proposed code shall become effective when enacted by the legislature, and such rules and regulations for admission to and disbarment from practice shall become effective when promulgated by the supreme court; that if the proposed Revision Code is enacted by the legislature, such Commission shall continue until the code is printed and bound, and in that connection shall advertise for bids, specify the type of printing and binding and let a contract therefor when approved by the Chief Justice; the supreme court shall have control over the making of all contracts, disbursement of all moneys appropriated, and may discharge any commissioner or employee and fill any vacancy.
The section of the Constitution claimed to be violated is number 96:
"No duties shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial, nor shall any of the judges thereof exercise any power of appointment, except as herein provided."
In this state, as in all other states of the Union, the essential functions of government are divided among three departments, the legislative, executive, and judicial. This court has early held that these grants were in their nature exclusive and that neither department could exercise any of the functions of the other. State ex rel. Standish v. Boucher, 3 N.D. 389, 56 N.W. 142, 21 L.R.A. 539. Section 96 also provides that only judicial duties may be exercised by the supreme court, but such provision does not alter the general principle embraced in the maxim "Separation of the powers of government."
It is therefore necessary to consult authorities for the principles to be applied in determining whether the duties conferred upon the supreme court by the Recodification Act are not judicial.
"Judicial power determines what the law is, and what the rights of the parties are with reference to transactions already had, and whenever an act undertakes to determine a question of right or obligation or property, as the foundation upon which it proceeds, such act is to that extent a judicial one." State ex rel. Miller v. Taylor, 27 N.D. at p. 87, 145 N.W. 425.
"`On general principles, those inquiries, deliberations, orders and decrees which are peculiar to such a department must in their nature be judicial acts.' . . . The judicial department of government is that department which it was intended should interpret and administer the laws. . . . Judicial power is authority vested in some court, officer, or person to hear and determine when the rights of person or property, or the propriety of doing an act are the subject matter of adjudication. . . . Official action, the result of judgment or discretion, in such case is a judicial act." State ex rel. Standard Oil Co. v. Blaisdell, 22 N.D. 86, at p. 95, 132 N.W. 769, Ann. Cas. 1916E, 1089.
"The distinction between legislative or ministerial functions and judicial functions is difficult to point out. What is a judicial function does not depend solely on the mental operation by which it is performed or the importance of the act. . . . As to what is judicial
and what is not seems to be better indicated by the nature of a thing than its definition." 6 R.C.L. p. 159.
"Indeed, there is not a single Constitution of any state in the Union which does not practically embrace some acknowledgment of the maxim (Separation of the powers of government to be administered by the three arms of government separately) and at the same time some admixture of powers constituting an exception to it." See, Re Minneapolis, St. P. S. Ste. M.R. Co. 30 N.D. 221, at p. 226, 152 N.W. 513, P.U.R.1915D 434, Ann. Cas. 1917B, 1205.
"Notwithstanding the general rule, however, the legislature may clothe judges with powers which are not by their nature either exclusively judicial or nonjudicial, and also with such minor executive and ministerial functions as may be necessary to the proper operation of the system of government established by the Constitution." 33 C.J. 960; 12 C.J. 874 (376).
"All powers, however, even though not judicial in their nature, which are incident to the discharge by the courts of their judicial functions are inherent in the courts, and the exercise of such powers by the courts is not forbidden by constitutional provision for the division of the powers of government among the several departments." 12 C.J. 873.
Our laws were compiled in 1913, and in 1925 a Supplement covering subsequent legislation was provided. Since then, separate volumes for each session of the legislature have been published, a total of seven; besides pamphlets covering special sessions. During that period there has been much new legislation and many amendments, many of which contain a general repeal clause. The result is that no one can be sure that he has seen all the laws on a given subject or knows just what laws are in force. It is of the utmost importance, not only to the bar and the public generally, but to the courts, that the Constitution and all the laws of the state be continued to date, annotated, revised and indexed.
The sole purpose of the Recodification Act is to make easily available for the courts and for the attorneys (who are officers of the courts) all constitutional provisions, statutes and judicial decisions. Under present conditions, with an ever increasing volume of legislation and decisions, the courts would be unable to function without systematic arrangement of the laws and adequate digests and annotations. It is therefore competent for the legislature to authorize the supreme court
to exercise such functions as are necessarily connected with the performance of its judicial duties, although such acts may be of a ministerial or executive nature.
In Re Revisor of Statutes, 141 Wis. 592, 124 N.W. 670, 18 Ann. Cas. 1176, involving a similar question, the Wisconsin court said: ". . . where the officer or employe is to act in an administrative way as an aid, even though indirectly, to the court in the performance of its functions, his appointment may rightly be delegated to a court or judge, and such delegation is not an invasion of executive power, nor is the fixing of his salary in advance an invasion of legislative power, nor does the judge who makes the appointment thereby attempt to hold another office."
This act, chap. 110, § 4, 1939 Session Laws, provides: ". . . The proposed code . . . shall become effective when enacted by the legislature; and such rules and regulations for admission to and disbarment from the practice of law shall be effective when promulgated by the supreme court."
Clearly the legislature did not intend to vest any of its powers in the judiciary, for it expressly reserved the power of enactment, and it is significant, too, that it left with the supreme court the right to adopt rules of practice and regulations for admission to and disbarment from the practice of law, powers which are generally recognized as being inherently in the courts. 7 R.C.L. p. 1023. See note in 110 A.L.R. 41. Under this act it is not the function or duty of the Code Commission to make or change any existing law.
Our Constitution is not to be construed as rigidly classifying all the functions of government as being either legislative, executive or judicial.
In fact this court under legislative authority, but technically contrary to § 96 of the Constitution, for long periods of time has made appointments, helpful and necessary in the performance of its judicial duties.
Thus the supreme court has for sixteen years appointed the officers of the State Board of Bar Examiners and has regulated and controlled the performance of their duties, notwithstanding the Constitution makes no provision for such appointments. 1925 Supp. § 782.
Section 783 requires that an oath be taken by such officers and fixes the term of their appointment for six years.
Section 784 provides that said Bar Board shall hold public examinations for admission to the bar.
Section 785 requires that the Bar Board shall report the result of all examinations to the supreme court with such recommendations for admission as to the Board shall seem just, and the supreme court shall, after considering the report and recommendations, make its order authorizing the issuance of certificates of admission to the bar.
Section 787 provides for the compensation of the Bar Board members and that they shall have power to employ assistants, purchase supplies, etc.
Section 789 vests the supreme court with the power to admit persons to practice as attorneys at law.
Section 808 provides that disbarment complaints filed with the supreme court shall be referred to the Bar Board, with directions to investigate the charges, and empowers the Board to issue subpœnas, administer oaths and take testimony.
Section 809 requires that the Board file with the court a report as to the truth and validity of the charges investigated, with recommendations.
Section 810 directs that, upon order of the supreme court, the Bar Board shall prosecute the disbarment charges, and authorizes the Board to employ attorneys to conduct the prosecution.
All of the foregoing duties may be classified as ministerial in nature, although judicial in purpose.
In 41 N.D. 692, at pages 700 to 702, are rules of practice of the supreme court, numbers 30 to 36, governing and affecting admission to the bar and disbarment. In enacting such rules this court was engaging in a practice which was legislative in nature, form and character, although judicial in purpose.
If the strict construction contended for by the relator is placed upon the limitations of power contained in § 96, then it would appear that the foregoing statutes relating to the State Bar Board are unconstitutional. While the exercise of these powers by this court does not validate such statutes, nevertheless the exercise of the powers which these statutes purport to confer upon this court constitutes a judicial
practice, long followed by the court, which should be taken into consideration in determining a construction to be given to the limitations contained in the second clause of § 96.
"Every reasonable presumption is in favor of the constitutionality of a statute enacted by the legislature. . . . This presumption is conclusive, unless it is clearly shown that the enactment is prohibited by the Constitution of the state or of the United States. . . . It is presumed that the legislature intended to enact a valid law, and therefore, when a statute is susceptible of two constructions, one of which will render it valid and another which will render it unconstitutional and void, the former construction will be adopted. . . . The only test of the validity of an act regularly passed by the state legislature is whether it `violates any of the express or implied restrictions of the state or Federal Constitutions.'" State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A. 1918B, 156, Ann. Cas. 1918A, 583; State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N.W. 711, 113 Am. St. Rep. 612.
The unconstitutionality of this act is further urged on the ground that it grants to the judges of the supreme court power of appointment in violation of § 96. Such judges, however, under § 93 of the Constitution do have power to appoint a clerk and a reporter, whose positions are described as being "offices."
Under the Recodification Act the supreme court is directed to "select and employ" the members of the Commission. Furthermore, the Commission acts under the supervision and direction of the supreme court; such court determines the compensation of the members of the Commission, and it may discharge them at will. It is true that § 7 of the act requires the members of such Commission to file an oath of office. This fact, however, is not conclusive in determining whether a person is a public officer. "Generally speaking, one of the requisites of an office is that it must be created by a constitutional provision, or it must be authorized by some statute, and an important distinction between the status of an officer and that of an employee rests on the fact that an office is based on some provision of law, and does not arise out of contract, whereas an employment usually arises out of a contract between the government and the employee. And although an employment
may be created by law, where authority is conferred by contract, it is regarded as an employment, and not as a public office, notwithstanding provisions for the employment are made by statute, and notwithstanding the position is referred to as an office." 46 C.J. 930.
Another doctrine that is well-nigh universal is that the duties must be continuous and permanent and not merely transient, occasional or incidental. Re Revisor of Statutes, 141 Wis. 592, 124 N.W. 670, 18 Ann. Cas. 1176, supra. 22 R.C.L. 374 (5).
In the case of Baird v. Lefor, 52 N.D. 155, 201 N.W. 997, 38 A.L.R. 807, this court held a receiver to be an officer of the court and not a civil officer. It was pointed out also that the term of office, compensation and qualification of a receiver are all left to the court. The same conditions exist in this case. There is no provision in the Constitution authorizing courts toappoint receivers, but this court held in the Lefor Case that it had inherent powers to appoint receivers to act as agents of the court. "It may be conceded that generally the appointment to office is within the executive function, but there remains the exception that within the duties of both the judicial and legislative branches of the government are certain administrative acts in aid and execution of the judicial and legislative functions which need to be performed by means of assistants and that as either the legislature or the judiciary might, may, must constitutionally perform such acts, they may select those who are to aid them in such performance. . . ." State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N.W. 475.
Selection and employment by the Supreme Court of members to serve on the Code Revision Commission under chap. 110 of the 1939 Session Laws, do not constitute an appointment prohibited by § 96 of the state Constitution. Such commissioners, when appointed and after taking their oaths of office, become agents or officers of the court.
The Recodification Act further provides that if the proposed Revision Code is enacted by the legislature, then the said Commission shall determine upon a style of printing and binding to be used, shall advertise for bids for printing of the report to be made to the legislature of 1941, and shall let a contract to the lowest and best bidder, all as required by § 9 of said act.
No part of this act requires the Commission to submit to the
legislature a printed report of its work or printed and bound volumes of the proposed code and rules. Section 9 does recite that the Commission shall advertise for bids for the printing of such report, but this requirement is negatived by the provision that such advertisement shall be made when and if the report, proposed code and rules are adopted.
This § 9 of the act is unconstitutional and void, in that it imposes other than judicial duties upon the supreme court, in violation of § 96 of the Constitution.
When the Code Revision Commission, as agents of this court, has submitted its report and the proposed Revised Code to the legislature for adoption, which it may do without having them printed and bound, it has performed all the duties of a judicial nature imposed upon it under such act, which it may legally do.
If the legislature enacts such proposed code, any act by the Commission thereafter in advertising for bids or letting contracts would clearly, under the foregoing authorities, be nonjudicial acts.
The unconstitutionality of said § 9, however, shall in no manner affect or alter any duties or functions directed or authorized to be done under the remainder of the act prior to the adoption by the legislature of the report of the Commission and the proposed code. Thereafter it is a matter for the attention of the legislature.
For the reasons herein stated relator's application for an injunction must be granted, restraining defendants from approving vouchers or accounts against the said appropriation or issuing any warrants for payment of same, made or drawn thereon for advertising for bids for printing the code, Commissioners' Report to the Legislature and for printing or binding such report, the Code of Laws, either proposed or enacted, and the rules of practice and procedure, as provided for in said § 9, or the doing of any other act by said Code Commission after the adoption of said report and proposed code. The application in other respects should be denied.
GRONNA, Dist. J., concurs.