Page:North Dakota Reports (vol. 3).pdf/351

 for such amounts. The auditor has refused, and still refuses to issue warrants to the relator upon the basis of a salary of $1,500. The court below directed the defendant to issue the warrants as demanded. The facts are conceded, and the sole question presented for the determination of the court is whether relator’s salary is, or is not, $1,500 a year. If it is that amount, the order appealed from must be affirmed; otherwise, it must be reversed. The solution of the question must turn upon the construction to be given to certain constitutional provisions and statutes which bear upon the subject matter.

Chapter 110 of the Laws of 1889 embraces an act of the legislature of the Territory of Dakota, which act amends an act of 1885, entitled “An act to provide for the establishment of a board of railroad commissioners, defining their duties,” etc. Both acts authorized the governor of the Territory, by and with the advice and consent of the council, to appoint three persons biennially, to be “and constitute a board of railroad commissioners.” Section 6 of the act of 1885 was re-enacted without change, and constituted § 27, Ch. 110, Laws 1889. Said section is as follows: “The said commissioners shall hold their office at such place as they shall determine. They shall each receive a salary of $2,000, to be paid as the salaries of the other territorial officers are paid, and shall be provided, at the expense of the territory, with necessary office furniture and stationery; and they shall have authority to appoint a secretary who shall receive a salary $1,500 per annum.” This section is explicit, and under it the territorial board of railroad commissioners “had authority to appoint a secretary,” and when appointed the secretary’s salary was $1,500 a year. This section was in force when the state constitution went into effect, in the year 1889; and it becomes necessary to inquire whether it was in force during the time when the relator was in office, because it is not claimed that any statute has been passed by the state legislature, in terms, creating the office of secretary of the “‘commissioners of railroads.” The relator's claim is that such office has been recognized by state legislation, and that no state enactment is in