Burke, J.
In the' complaint in this action the state of North Dakota demanded an accounting by the defendant Erickson of certain funds which it was alleged were received by him as insurance commissioner of the state of North Dakota, and disbursed or retained by him or his agents contrary to law. The defendant demurred to the complaint. In the district court the demurrer was sustained and judgment was entered for the dismissal of the action. This appeal is from the order sustaining the demurrer and from the judgment.
It was alleged in the complaint that the action was brought by direction of the governor pursuant to the provisions of chapter 265, Laws of ND 1941. The complaint was signed by Clyde Duffy as attorney for the plaintiff. It does not bear the signature of the attorney general nor in any way indicate that Mr. Duffy appeared for the state pursuant to any authority from the attorney general. By .this demurrer, defendant sought to challenge the authority of Mr. Duffy to represent the state.
As was stated in plaintiff’s brief, “The-sole question at issue is whether this action may be prosecuted by anyone other than the attorney general.” The brief continues, “There may well be a ques
tion as to whether that issue could be raised by demurrer but we waive that question as it is important to have the primary issue determined.” No objection was made to the propriety of the remedy in district court. The objection was expressly waived in this court. And since no question of jurisdiction is involved, we do not consider it necessary or proper for us to pass upon the correctness of the adopted procedure.
Upon the merits the first question with which we are confronted is one of statutory construction. The statutes involved are chapter 265, Laws of N. D. 1941 and § 157, Compiled Laws of N. D. 1913. . The title and pertinent sections of chapter 265, supra, are as follows:
“An Act Providing for special audits and investigations of the North Dakota Mill and Elevator Association, the Bank of North Dakota, the State Highway Department and the Office of State Highway Commissioner, the - Board of Administration, the Board of University and School Lands, the Industrial Commission and' the State Securities Commission, and such other offices, departments, institutions and commissions of the State as the Governor shall designate; providing for the appointment of a Special Examining Commissioner and for the prosecution of any action or proceeding which may be deemed warranted as a result of such audit investigation or check up; providing for an appropriation to carry out the purposes of this Act.”
Section 2:
“In order to carry out the foregoing objects and purposes, the Governor is hereby given and granted the following specific power and authority, viz.:
“(A) To appoint a citizen of the State of North Dakota to carry out special audits and investigations as the Governor shall direct, which appointee shall be officially known and designated as the Special Examining Commissioner and to fix the compensation of such commissioner and to remove him at pleasure and appoint- another commissioner in his place.
“(B) To authorize and empower said commissioner to employ and to discharge and replace such assistants,, employees, auditors, acbount-ants, attorneys and investigators and other persons as the Governor
may deem advisable and necessary and; with the consent and approval of the Governor, to fix their compensation.
“(O')..........
“(D) To direct, authorize and empower said commissioner in the name of the State of North Dakota to commence, prosecute and carry on such actions, suits or proceedings as the Governor may deem justified and advisable by reason of or growing out of any disclosures which may result from proceedings under the Act.”
Paragraphs 1, 2 and 3 of § 157, supra, provide as follows:
“The duties of the attorney-general shall be:
“1. To appear for and represent the state before the supreme court in all cases in which the state is interested as a party.”
“2.. To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.”
“3. To appear and defend all actions and proceedings against any state officer in his official capacity in any of the courts of this state or of the United States.”
Defendant contended in the district corrrt and now contends upon this appeal that chapter 265, supra, when construed with § 157, supra, requires that in all actions, brought pursuant to its terms the state must be represented by the attorney general. He urges two well recognized rules of statutory construction which he says will, if • applied, necessarily lead us to the construction for which he contends. The first is, that statutes relating to the same subject matter must be con-srued together and harmonized so as to give effect to each if it is reasonably possible so to do. The second is, that where a statute is subject to two constructions, one of which is of doubtful constitutionality and the other of which is clearly constitutional, the latter construction will be adopted. He asserts that the construction he advocates is reasonable and gives effect to the provisions of both chapter 265 and § 157, supra, and also that if chapter 265, supra, be construed to deprive the attorney general of the right to represent the state in actions brought pursuant to its provisions it would be of doubtful constitutionality.
The parties agree that prior to the enactment of chapter 265, supra, the exclusive right to represent the state in all actions brought in its name was vested in the attorney general; and with this construction we are in complete accord. The question then, is; did the legislature in enacting chapter 265 intend to amend or modify § 157, supra, by requiring the attorney general to share that hitherto exclusive right with a private attorney designated by the examining commissioner ?
For the answer to this question we must first look to the language of the statute itself. Marks v. Mandan, 70 ND 434, 296 NW 34. The title of the act, heretofore set forth, clearly indicates that one of its purposes was to provide for the prosecution of causes of action that might be disclosed as a result of audits or investigations made pursuant to its authority; but the title contains no intimation whatever, that the lawmakers intended to provide that in such actions the state might be represented by a private attorney and thus strip from the attorney general a portion of the authority conferred upon him by statute, if not by the Constitution.
In support of the contention that chapter 265 provides for representation of the state by private attorneys, appellant relies chiefly on the provisions of subsections B and D of § 2 of the Act. Subsection D authorizes the governor to direct the examining commissioner to commence such actions as the governor may deem justified by any disclosures resulting from any investigation made under the act.
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Burke, J.
In the' complaint in this action the state of North Dakota demanded an accounting by the defendant Erickson of certain funds which it was alleged were received by him as insurance commissioner of the state of North Dakota, and disbursed or retained by him or his agents contrary to law. The defendant demurred to the complaint. In the district court the demurrer was sustained and judgment was entered for the dismissal of the action. This appeal is from the order sustaining the demurrer and from the judgment.
It was alleged in the complaint that the action was brought by direction of the governor pursuant to the provisions of chapter 265, Laws of ND 1941. The complaint was signed by Clyde Duffy as attorney for the plaintiff. It does not bear the signature of the attorney general nor in any way indicate that Mr. Duffy appeared for the state pursuant to any authority from the attorney general. By .this demurrer, defendant sought to challenge the authority of Mr. Duffy to represent the state.
As was stated in plaintiff’s brief, “The-sole question at issue is whether this action may be prosecuted by anyone other than the attorney general.” The brief continues, “There may well be a ques
tion as to whether that issue could be raised by demurrer but we waive that question as it is important to have the primary issue determined.” No objection was made to the propriety of the remedy in district court. The objection was expressly waived in this court. And since no question of jurisdiction is involved, we do not consider it necessary or proper for us to pass upon the correctness of the adopted procedure.
Upon the merits the first question with which we are confronted is one of statutory construction. The statutes involved are chapter 265, Laws of N. D. 1941 and § 157, Compiled Laws of N. D. 1913. . The title and pertinent sections of chapter 265, supra, are as follows:
“An Act Providing for special audits and investigations of the North Dakota Mill and Elevator Association, the Bank of North Dakota, the State Highway Department and the Office of State Highway Commissioner, the - Board of Administration, the Board of University and School Lands, the Industrial Commission and' the State Securities Commission, and such other offices, departments, institutions and commissions of the State as the Governor shall designate; providing for the appointment of a Special Examining Commissioner and for the prosecution of any action or proceeding which may be deemed warranted as a result of such audit investigation or check up; providing for an appropriation to carry out the purposes of this Act.”
Section 2:
“In order to carry out the foregoing objects and purposes, the Governor is hereby given and granted the following specific power and authority, viz.:
“(A) To appoint a citizen of the State of North Dakota to carry out special audits and investigations as the Governor shall direct, which appointee shall be officially known and designated as the Special Examining Commissioner and to fix the compensation of such commissioner and to remove him at pleasure and appoint- another commissioner in his place.
“(B) To authorize and empower said commissioner to employ and to discharge and replace such assistants,, employees, auditors, acbount-ants, attorneys and investigators and other persons as the Governor
may deem advisable and necessary and; with the consent and approval of the Governor, to fix their compensation.
“(O')..........
“(D) To direct, authorize and empower said commissioner in the name of the State of North Dakota to commence, prosecute and carry on such actions, suits or proceedings as the Governor may deem justified and advisable by reason of or growing out of any disclosures which may result from proceedings under the Act.”
Paragraphs 1, 2 and 3 of § 157, supra, provide as follows:
“The duties of the attorney-general shall be:
“1. To appear for and represent the state before the supreme court in all cases in which the state is interested as a party.”
“2.. To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.”
“3. To appear and defend all actions and proceedings against any state officer in his official capacity in any of the courts of this state or of the United States.”
Defendant contended in the district corrrt and now contends upon this appeal that chapter 265, supra, when construed with § 157, supra, requires that in all actions, brought pursuant to its terms the state must be represented by the attorney general. He urges two well recognized rules of statutory construction which he says will, if • applied, necessarily lead us to the construction for which he contends. The first is, that statutes relating to the same subject matter must be con-srued together and harmonized so as to give effect to each if it is reasonably possible so to do. The second is, that where a statute is subject to two constructions, one of which is of doubtful constitutionality and the other of which is clearly constitutional, the latter construction will be adopted. He asserts that the construction he advocates is reasonable and gives effect to the provisions of both chapter 265 and § 157, supra, and also that if chapter 265, supra, be construed to deprive the attorney general of the right to represent the state in actions brought pursuant to its provisions it would be of doubtful constitutionality.
The parties agree that prior to the enactment of chapter 265, supra, the exclusive right to represent the state in all actions brought in its name was vested in the attorney general; and with this construction we are in complete accord. The question then, is; did the legislature in enacting chapter 265 intend to amend or modify § 157, supra, by requiring the attorney general to share that hitherto exclusive right with a private attorney designated by the examining commissioner ?
For the answer to this question we must first look to the language of the statute itself. Marks v. Mandan, 70 ND 434, 296 NW 34. The title of the act, heretofore set forth, clearly indicates that one of its purposes was to provide for the prosecution of causes of action that might be disclosed as a result of audits or investigations made pursuant to its authority; but the title contains no intimation whatever, that the lawmakers intended to provide that in such actions the state might be represented by a private attorney and thus strip from the attorney general a portion of the authority conferred upon him by statute, if not by the Constitution.
In support of the contention that chapter 265 provides for representation of the state by private attorneys, appellant relies chiefly on the provisions of subsections B and D of § 2 of the Act. Subsection D authorizes the governor to direct the examining commissioner to commence such actions as the governor may deem justified by any disclosures resulting from any investigation made under the act. Subsection B authorizes the examining commissioner to employ and discharge auditors, accountants, attorneys and investigators. Neither section expressly provides that the attorney general shall be displaced as the representative of the state in litigated actions. It is evident that the legislature did not contemplate that the examining commissioner should represent the state in such actions as there is no requirement that he be an attorney and the present examining commissioner is not an attorney. Nor does it follow as a necessary implication of subsection B that the attorneys appointed by its authority were to have the right to represent the state in the courts. There are many necessary duties of a preliminary nature which these attorneys may perform without infringing on the powers of the attorney general. The nature of these duties and the necessity for the commissioner to' employ at
torneys to perform them are disclosed by the provisions of subsection E of § 2 of chapter 265. This section authorizes the commissioner in connection with his general powers of conducting audits and investigations “to hold hearings and take testimony” of witnesses who have been subpoened to testify before him. A legislative authorization to employ an attorney for the sole purpose of assisting in the investigations, of examining witnesses at the hearings presided over by the commissioner and of advising the commissioner upon the effect, the competency and the sufficiency of the evidence adduced, is in complete harmony with legislative practice in conducting legislative investigations. We think therefore that a construction thus limiting the powers of the authorized attorneys is a reasonable construction. State v. Gattavara, 182 Wash 325, 47 P (2d) 18.
It is our duty to construe chapter 265, so as to avoid conflict with other statutes and constitutional doubt if it is reasonably possible so to do. State ex rel. Kettle River Quarries Co. v. Duis, 17 ND 319, 116 NW 751; Wood v. Byrne, 60 ND 1, 232 NW 303; Royal v. Aubol, 69 ND 419, 287 NW 603. In our discussion so far we have already referred to the conflict that would exist between § 157 and chapter 265, supra, if we were to say that chapter 265 authorized private attorneys to represent the state in suits brought in its name. That there would be such conflict is patent and it is conceded. Further, although it is not conceded, we are of the opinion that such a construction would give rise to substantial doubt as to the constitutionality of chapter 265, under the constitutional theory adopted by this court in Ex parte Corliss, 16 ND 470, 114 NW 962. In that case this court in referring to the governor, attorney general and the courts said: “It seems too obvious for discussion that the framers of the Constitution, in providing for the election of these officers by the people, thereby reserved unto themselves the right to have the inherent functions theretofore pertaining to said offices discharged only by persons elected as therein provided.” The clear implication of this language is that the legislature has no constitutional power to abridge the inherent powers of the attorney general despite the fact that the Constitution provides that “the duties of the attorney general shall be as prescribed by law.” Const. § 83: Our recognition that the con
struction of chapter 265, as contended for by appellant, would give rise to a serious constitutional question is not to be interpreted as a holding that the statute would be unconstituional if so construed nor that we would necessarily adhere to the theory of Ex parte Corliss were the question presented there to be re-examined. It is sufficient for the purpose of the rule merely that the existence of the doubt be recognized. It would not be proper for us to resolve the doubt.
Following the rules of statutory construction above set forth, we hold that chapter 265, supra, does not empower the governor and the examining commissioner to authorize an attorney other than the attorney general to represent the state in actions brought thereunder.
The order and judgment of the district court are therefore affirmed.
Christianson and Nuessle, JJ., concur.