State v. Erickson , 72 N.D. 417 ( 1943 )

I am unable to agree with all that is said in the majority opinion and therefore set forth my views separately. I have no doubt as to the power of the legislature to prescribe the duties of the attorney general or to authorize special attorneys to conduct litigation for or on behalf of the state.

The attorney general is a constitutional officer only in so far as the establishment of the office is concerned. The powers and duties appertaining to the office are such as the legislature may prescribe. The Constitution does not undertake in any manner to define or limit those powers and duties. Section 83 of the Constitution merely says, "The powers and duties of the . . . Attorney General . . . shall be as prescribed by law." Notwithstanding what may have been said in Ex parte Corliss,16 N.D. 470, 114 N.W. 962, it seems clear that the Constitution, without reservation, vests in the legislature the power to prescribe by legislation the powers and duties of the attorney general. Authority that the legislature may at one time prescribe, it may later take away and vest elsewhere. I have no doubt but that the legislature by express restriction may curtail powers normally exercised by the attorney general by vesting such powers as it may see fit in other officials or such attorneys as it may specifically authorize to act. See 7 CJS 1229; State v. Gattavara, 182 Wash. 325, 47 P.2d 18; Follmer v. State, 94 Neb. 217, 142 N.W. 908, Ann Cas 1914D 151.

Section 1 of chapter 265, ND Session Laws 1941, provides that: "The Governor is hereby authorized, directed and empowered without compensation, to make a special audit, investgation and check up of any or all of the following, viz.; 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."

Section 2 of this act vests in the governor certain power and authority for the purpose of carrying out the things that the governor is authorized and directed to do by § 1. Among these authorizations is the appointment of a special examining commissioner. The governor is given the further power to "authorize and empower said commissioner to employ and to discharge and replace such assistants, employees, auditors, accountants, 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." The governor is also given authority "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."

The governor may also direct the commissioner to hold hearings and take testimony. The commissioner when authorized by the governor may subpoena witnesses to appear before him and may call upon various officers and boards to furnish information with respect to transactions which the commissioner is authorized to investigate. Certain other authority incidental to carrying out the purposes of the act is vested in the governor the details of which are unimportant for the purposes of determining the controversy before us.

At the time of the enactment of chapter 265, Session Laws 1941, the attorney general was authorized "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." Supp. to Comp. Laws, § 157. Were it not for the provision of chapter 265 authorizing the employment of attorneys there could be no question but that it would be the duty of the attorney general to represent the state in an action such as the one now before us. I agree with the majority that if possible the statutes should be harmonized. Furthermore, the attorney general should not be deprived of the customary and long-standing powers conferred upon him by the legislature unless the intention of the legislature to do so clearly appears. Chapter 265 does not clearly express such an intention. It is ambiguous on this point and subject to a construction that will not result in conflict with previous legislative enactments.

Chapter 265 authorizes the employment of attorneys and others whom the governor may deem necessary for the conduct of the audits and investigations contemplated by that act. The litigation which may result from such investigations and audits carries those matters into the realm of the powers and duties of the Attorney General under § 157, Supp. to Comp. Laws. When and if the special examining commissioner is directed or authorized by the governor to prosecute an action or proceeding in the name of the state upon matters growing out of audits and investigations authorized by the act it becomes the duty of the attorney general to prosecute and conduct such action as the chief law officer of the state. The statute under consideration does not authorize an attorney appointed by the commissioner to supplant the attorney general in the performance of this duty. I therefore concur in the statements of the law contained in the syllabus and the result arrived at by the majority opinion.