Page:North Dakota Reports (vol. 3).pdf/352

 conflict with the provisions of § 27, relating to the appointment and salary of a secretary, and hence that the same are in force. If the position of secretary of the commissioners of railroads is, under § 27, a distinct state office, and one which exists separately and apart from the position of a clerk of the commissioners of railroads, it would be the duty of the state auditor, under the annual appropriation act, approved February 27th, 1891, (Ch. 10, Laws 1891,) to issue the warrants demanded by the relator as the incumbent of such office. That the relator was appointed to the office of secretary by the commissioners of railroads is not questioned.

Turning to the state law we find that § 82 of the constitution provides “there shall be chosen by the qualified electors of the state * * * three commissioners of railroads. * * * They shall severally hold their offices at the seat of government for the term of two years, and until their successors are elected and duly qualified.” Section 83 provides: “The powers and duties of the commissioners of railroads shall be as prescribed by law.” Section 84 fixes the annual salary of such commissioners at $2,000. The state constitution contains no further provisions relating to commissioners of railroads, and, as has been seen, it confers upon them no powers or duties, but, on the contrary, declares that their powers and duties “shall be as prescribed by law.” The legislature of the state, at its first session, enacted a great number and variety of statutes defining the powers and prescribing the duties of the “commissioners of railroads;” but, so far as we can see, no statute of the state has ever created, in-terms, the office of secretary of the commissioners of railroads, or authorized such commissioners, or any one else, to appoint an officer of that name. See Ch’s 122, 123, 125, 126, 128, 187, 189, Laws 1890. Upon this state of facts the question arises, under the law, whether there is, independent of clerkships, an office of “secretary” of the commissioners of railroads in the State of North Dakota. If the law has not created such an office it will be conceded that the commissioners could not do so by the mere act of appointing the relator