State ex rel. Langer v. Lofthus , 45 N.D. 357 ( 1920 )

Birdzeix, J.

This is an appeal from an order overruling separate demurrers of the defendants to an amended complaint. The defendant Lofthus is state examiner of North Dakota, and on October 28, 1919, he appointed the defendant Paulson a deputy examiner. The latter immediately signed an oath of office as required by law, and commenced the performance of duties as a deputy examiner. On October 30, 1919, the matter of this appointment was taken up at a meeting of the state banking board, composed of the governor, the secretary of state, and the attorney general. From the minutes of this board meeting it appears that the attorney general moved that the appointment of Mr. Paulson be not approved, the motion being carried by the affirmative vote of the attorney general and the secretary of state, the governor voting, “No”. The secretary of state stated a reason for his vote, which did not go to the qualifications or fitness of the defendant Paulson for the position, but wbicb was in the nature of a protest over the removal of his predecessor, Halldorson. The complaint sets up the foregoing, and, in addition, alleges that the banking board has persisted in its disapproval of the appointment; that Paulson, since October 28, 1919, has continuously exercised the duties and powers of a deputy state examiner to the extent of examining banks and other moneyed corporations; for which he is attempting to collect the salary attaching to the office of deputy state examiner, and the expenses incurred in the discharge of the duties incident thereto. It is not alleged that any such salary or expenses have been paid or are likely to be paid. Plaintiff further alleges that the question raised “is a matter affecting the interests of the people of the state, and the dignity, the integrity, and independence of the laws and Constitution of the state.” The prayer for relief is for “a writ of prohibition and injunction,” (1) prohibiting and restraining the defendant Lofthus from continuing to permit the defendant Paulson to act as a deputy bank examiner; (2) prohibiting and enjoining Paulson from continuing to exercise any of the powers or perform any of the duties incident to the office of deputy state examiner; and.(3) for general relief.

In the district court an alternative writ of injunction issued substantially in accordance with the prayer for relief above referred to, and, upon the adjourned return day of the order to show cause, the matter was heard upon separate demurrers to the complaint, whereupon the application for the injunctional order was vacated, but the demurrers to the complaint were overruled. The appeal is only from that portion of the order overruling the demurrers.

The sole question is as to the sufficiency of the complaint to warrant the granting of any relief.

The appointment in question was made under ¶ 6 of § 5146, Comp. Laws 1913. The statute reads in part as follows: “The state examiner may, subject to the approval of the state banking board, appoint and at pleasure remove, not more than ten (10) deputy examiners and one stenographer and such other employees as may, in the judgment of the state banking board, be necessary for the proper discharge of the business of his department.”

The deputy examiners are required to give bond in the sum of $10,000. It is asserted that deputy examiners, whose appointment is provided for in the manner indicated, are not officers within § 7969, Comp. Laws 1913, which provides for a civil action as a substitute for the remedies formerly attainable by the writ of quo warranto and by proceedings in the nature of quo warranto. Section 7971 provides that the state may commence an action against the offending party when any person “shall usurp, intrude into, or unlawfully hold or exercise any public office.”

The principal contention of the appellant is that a deputy examiner does not occupy an office capable of being judicially protected against intrusion under this statute. It is pointed out that the tenure, is at the will of the appointing power, and that no cause need be assigned for the removal of any such deputy. This being true, it would seem that no question concerning the right of an intruder could arise which could not be determined by the administrative or executive officers who are charged with the appointment; for it is apparent that they, acting harmoniously, can vest and devest the right to the position of deputy examiner at will, so long as they keep within the number limited by the statute.

The complaint discloses, however, that the members of the state banking board are not acting harmoniously in the instant case. Whether, from a failure of the board members to agree upon an appointment, or from the placing by them of conflicting constructions upon the statute providing for their duties, does not appear, if, indeed, it is material. Conceding that this situation might possibly give rise to a controversy properly determinable in a court of justice, we do not regard the facts stated in the complaint in this case as being sufficient for the purpose. Neither, in our view, is its sufficiency properly tested by the considerations advanced by the appellant, as noted above. We shall, therefore, not concern ourselves with a decision upon the contentions advanced; for, wholly apart from the question as to whether or not the state may maintain a civil action to oust an intruder from an appointive office, terminable at the will of the appointing power, we are satisfied that the complaint in the instant ease does not state facts sufficient to warrant judicial interference.

This proceeding is apparently not brought for the purpose of testing the title of the defendant Paulson as against the claim of any other person. It would seem that the whole object of the proceeding is to obtain a judicial determination of the fact that the defendant Paulson has no title to the office. If any of the relief prayed for be granted, it would merely result in creating a vacancy. Public offices are created for the benefit of the public, and these benefits can only be secured when the offices are occupied and the duties thereof discharged. The public policy in this respect is well expressed in § 111 of the Compiled Laws of 1918, where the duty is imposed upon the governor “to see that all offices are filled and the duties thereof performed, or, in default thereof, to apply such remedies as the law allows.” And, “if the remedy is imperfect, acquaint the legislative assembly therewith at its next session.”

If affirmatively appears in the complaint that the defendant Paulson is discharging the duties of deputy examiner, and there are no allegations from which it would appear that the interests of the state are jeopardized, or that any injury will result to anyone from the manner in which these duties are being performed. Neither does the plaintiff seek to compel the taking of any steps that might be necessary to effect a legal appointment to the office in question. We are of the opinion that the complaint does not state facts sufficient to invoke either the equitable or the extraordinary legal powers of the court.

Por the foregoing reasons the order appealed from is reversed.

Christianson, Ch. J., and Eobinson and Bronson, JJ., concur. Grace, J. I concur in the result.