1919, to December 11, 1919, passed acts which affect the composition of such state auditing board and the contingent fund of such state auditor.

S. B. No. 40, enacted by this special session, amends said § 375, Comp. Laws 1913, by removing from the state auditing board the state auditor and the secretary of state, and substituting instead the commissioner of agriculture and labor, and the state bank examiner.

H. B. No. 44 amends the Budget Act (Laws 1919, chap. 16), by making large and substantial reductions in the amounts of the appropriations for various departments and, in particular, eliminating the contingent fund of the state auditor, out of which the salary warrant involved is payable.

Measures were enacted which changed the composition of the emergency commission (H. B. No. 13), the composition of the state equalization board (S. B. No. 26), reduced the number of assistants to the attorney general (S. B. 4 & 13), and transferred the licensing and inspection of pool halls and theaters, etc. (H. B. No. 7), from the department of the attorney general to the state sheriff.

In all, this special session enacted some seventy-two measures; thirty-three of these were emergency measures, enacted as such pursuant to the constitutional provisions requiring for each a two-thirds affirmative vote of both branches of the legislative assembly; thirty-nine of such measures did not receive such two-thirds vote, and were enacted by a majority vote. Among these measures so receiving a majority vote are S. B. No. 40, H. B. No. 44, H. B. No. 60 and the measures affecting the department of the attorney general.

H. B. No. 60 reads as follows:

"An act declaring and defining the time within which laws passed at any special session of the legislative assembly shall take effect. "Whereas, the Constitution of this state fails to define time within which laws enacted at any special session shall take effect, and

"Whereas, there should be some definite and certain time when such laws take effect, therefore

"Be it enacted by the Legislative Assembly of the State of North Dakota

"All acts of any special legislative assembly of the state of North

Dakota shall take effect within ten days after the close of any such special session, unless the legislature by a vote of two thirds of the members present and voting in each house shall declare it to be an emergency measure, in which event it shall take effect and be in force from and after its passage and approval by the governor."

In the senate, this bill was approved by a vote of twenty-nine ayes and twelve nays; in the house, by a vote of sixty-six ayes and forty-one nays. It was approved by the governor on December 11, 1919.

This act, H. B. No. 60, affecting the measures as above stated has created uncertainty and doubt as to the composition and powers of certain existing boards, the existence of the contingent fund, involved, and also salaries, the auditing of accounts, and the prerogatives and functions of state officials.

The issues present squarely a question for the exercise of the original jurisdiction of this court, involving the prerogatives and functions of state officials. If H. B. No. 60 is a present operative statutory enactment, which affects acts, not emergency measures, adopted by this special session, clearly the salary warrant involved herein should not be paid both by reason of want of auditing by a proper state auditing board, and also by want of a fund out of which payment may be made; for by the terms of H. B. No. 60, if operative as a law, all the acts of such session, not emergency acts, became effective as laws, commencing on December 22, 1919.

On December 20, 1919, there was filed with the secretary of state, referendum petitions upon said H. B. No. 60, which the secretary of state has certified are sufficiently signed by some 15,000 electors of the state for referendum to the people of such act under the constitutional amendment (art. 26), provided therefor.

The relators contend that H. B. No. 60, without determining the constitutionality of this provision, is, in any event, subject to the refendum filed and therefore is suspended; that the act is unconstitutional because in contravention of the constitutional provision, § 67 as amended, providing the time when acts of the legislature, not emergency measures, shall become effective; and, furthermore, that said H. B. No. 60 is unconstitutional because violative of § 61 of the Constitution which provides that no bill shall cover more than one subject.

The respondent contends that, as applied to a special session of the legislative assembly, there exists no constitutional provision applicable concerning the time when the acts involved become operative; that § 67 of the Constitution as amended does not apply to a special session of the legislative assembly; that H. B. No. 60 covers one subject, namely, the time when acts of a special session become effective; that even though H. B. No. 60 be deemed subject to the referendum petitions filed, and therefore suspended (which is not admitted), the constitutional provisions concerning time not being applicable to a special session, the acts involved and which the relators contend are not effective as laws, became effective as laws immediately upon their passage and approval.

The contention of the relators, without a consideration of the con stitutionality of the subject-matter of H. B. No. 60, is that this act is neither stated to be in terms nor has it been adopted as an emergency measure; that, therefore, it is subject to the provisions of the constitutional amendment granting the right to referend and suspend measures not adopted as emergency measures by a legislative assembly; that referendum petitions have been filed which are sufficient to so suspend such act until voted upon by the people. Plainly, this contention, even though it be recognized as tenable, and, further, that proper referendum petitions have been filed so as to suspend such act, does not avail the relators in any manner in support of the writ sought herein.

If, for any reason, or upon the theory advocated by the respondents, the subject-matter of H. B. No. 60 is constitutional, and the constitutional provision concerning when acts of the legislature are operative as laws, does not apply to a special session of the legislature, then there exists no law, constitutional or statutory, fixing the time when acts of a special session become laws. The general rule of law then obtains, not denied by the parties, namely, that statutory enactments, in the absence of constitutional or statutory provision, take effect upon their passage and approval.

The main acts involved herein are H. B. No. 44 and S. B. No. 40 relating respectively to the new state auditing board and the contingent fund involved. H. B. No. 60 is concerned with the rights of the relators only as its subject-matter pretends to make operative said S. D.

No. 40 and H. B. No. 44 as laws. If H. B. No. 60 is suspended and referred and the constitutional provision quoted does not apply to a special session, such acts are now operative as laws, and concededly relators cause of action fails.

It results, therefore, that the principal question before this court is whether in fact, the constitutional provisions, providing a time when the acts of a legislative assembly become effective, apply to a special session of the legislature.

It is not denied by the parties that if the constitutional provisions invoked do not apply to a special session of the legislative assembly, the act is a valid statutory enactment; that, on the contrary, if such constitutional provisions do apply, the act in question is unconstitutional.

In determining this prime and decisive question it is necessary to briefly consider the constitutional provisions invoked and such other constitutional provisions, legislative enactments, or interpretations, together with judicial decisions which may serve to throw light upon the determination of this question.

The original constitution of this state was submitted to and adopted by the people on October 1, 1889, and, at the same time, state officers were elected. The state was admitted into the Union by presidential proclamation on November 2, 1889.

In this Constitution (art. 2, § 67) it is provided: "No act of the legislative assembly shall take effect until July 1st, after the close of the session, unless in case of emergency (which shall be expressed in the preamble or body of the act), the legislative assembly shall by a vote of two thirds of all of the members present in each house otherwise direct."

In this Constitution it is also provided that the governor upon assuming the duties of his office shall issue his proclamation convening the legislative assembly of the state. Sched. § 17. That all laws now in force in the territory of Dakota, not repugnant to this Constitution, shall remain in force until they expire by their own limitations, or be altered or repealed. Sched. § 2.

Accordingly the first session of the legislative assembly of this state, by the governor's proclamation, was convened and met on November 19, 1889. It thereupon proceeded to elect United States Senators and

to enact statutory acts for the state. This session concluded on March 18, 1890.

In reviewing the acts enacted by this first session, it is apparent that this legislature conformed with the constitutional provisions concerning the time when its acts should become operative as laws. This legislature enacted acts prior to the month of January, 1890. Many emergency measures were passed at this session. In many of such acts it is particularly recited that it is necessary for the act to take effect before July 1st, following. Laws 1890, chap. 145, 146, 169, 170, 185, 197.

At this time there was also existing a territorial act that all laws enacted by the legislative assembly, unless otherwise expressly provided therein, should be in force and effect on the 1st day of July after their passage and approval. Terr. Laws 1889, chap. 3. This provision was held not to be repugnant to the constitutional provisions in Re Hendricks, 5 N. D. 114, 121, 64 N. W. 110.

Was the session of 1889-90 a special or extraordinary session, or a regular session?

In State ex rel. Larabee v. Barnes, 3 N. D. 319, 55 N. W. 883, the question was raised concerning the constitutionality of certain legislation enacted at this first session. It was contended that this session, convened before the regular time of a regular session, and prior to the commencement of a legislative term, as constitutionally prescribed for the legislators elect, contravened the constitutional provisions (§ 41, art. 2) which provided that such term of the legislative members should commence on the first Tuesday of January after their election, and (§ 53, art. 2) which provided that the legislative assembly should meet on the first Tuesday after the first Monday in January, in the year following the election of its members.

It was held that these constitutional provisions did not apply to this first session; that it applied only to subsequent legislatures, whose members were elected in the regular manner.

Nevertheless, this first session, convened by the governor's proclamation, at a time anterior to the regular session provided in the Constitution, conformed to the constitutional provisions concerning the time when its acts should become effective as laws.