Figenskau v. McCoy

• Citation: 265 N.W. 259,66 N.D. 290
• Decision Date: 08 February 1936
• Docket Number: 6386
• Court: United States State Supreme Court of North Dakota

265 N.W. 259

66 N.D. 290

THOS. FIGENSKAU, Sole Trader, Doing Business Under the Firm Name and Style Figenskau Coal Company, Petitioner, v. L.H. McCOY, Motor Vehicle Registrar, of the State of North Dakota, Ben C. Larkin, C. W. McDonnell and E. O. Cart, as the Board of Railroad Commissioners of the State of North Dakota, Respondents

No. 6386

Supreme Court of North Dakota

February 8, 1936

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Certiorari by Thomas Figenskau, sole trader, doing business under the firm name and style of the Figenskau Coal Company, to review an order of L. H. McCoy, the State Motor Vehicle Registrar canceling petitioner's motor vehicle license. From a judgment sustaining the registrar's order, petitioner appeals.

Reversed.

Syllabus by the Court.

1. Repeals by implication are not favored; but, where a new statute covers the entire subject-matter of a former statute in such a way as to set up a complete plan or course of action pertaining to such subject-matter which is inconsistent with that contained in the former statute, the old statute no longer remains in force.

2. Chapter 188, Session Laws N.D.1931, and chapter 164, Session Laws N.D.1933, compared, and it is held that the latter act repeals the former.

3. Since chapter 188, Session Laws N.D.1931, has been repealed the amendment and re-enactment of the definition of " auto transportation companies" contained therein by chapter 179, Session Laws N.D.1935, does not revive the 1931 act or provide for the regulation of such companies.

4. The state in imposing fees for the use of its highways may classify the users and impose different fees upon different classes, or may exempt certain classes from the payment of fees, but such classification or exemption must be based upon some reasonable and substantial distinction.

5. An exemption providing that commercial freighting " shall not include hauling done for farmers in transporting agricultural products to or from market, nor shall this include anyone hauling farm products to or from a railroad station in his farming territory," is based upon a reasonable and substantial distinction, and does not constitute a discriminatory classification.

6. Exemptions contained in chapter 181, Session Laws N.D.1935 which provide " this act shall not apply to retailers engaged in delivering only gas and gas products from a bulk station directly to the farmer, * * * nor to farmers hauling lignite coal regardless of the distance hauled, provided such hauling is done for other farmers and in exchange for work, and not for cash," are based upon arbitrary and discriminatory classifications which render the act unconstitutional.

Thomas J. Burke, for appellant.

The question as to the constitutionality of an act is to be determined not by what has been done under it but by what may be done under and by virtue of its authority. 6 R.C.L. 42; Sinclair v. State, 132 So. 581, 74 A.L.R. 1055; Rowe v. Ray, 231 N.W. 689, 70 A.L.R. 1056; Beveridge v. Baer, 59 S.D. 563, 241 N.W. 727; State v. Peterson, 194 P. 342, 13 A.L.R. 1284.

A statute cannot be sustained by giving to it a forced construction or by reading into it and interpolating words which do not appear in the language enacted by the legislature. State v. Wetz, 40 N.D. 299, 168 N.W. 835; Barnes v. Chicago, 153 N.E. 821, 52 A.L.R. 560.

Neither a private carrier nor a shipper-owner can be compelled to assume the burdens of a common carrier in exchange for the privilege of using the highways, and that laws making such provisions are in conflict with both the state and federal constitutions. Michigan Pub. Utilities Commission v. Duke, 266 U.S. 570, 69 L. ed. 446, 45 S.Ct. 191, 36 A.L.R. 1106; Frost v. Railroad Commission, 271 U.S. 583, 70 L. ed. 1101, 47 A.L.R. 457; State v. Smith, 256 P. 1011; Smallwood v. Jeter, 244 P. 149; State v. Nelson, 238 P. 237; Smith v. Cahoon, 75 L. ed. 1264.

It is not necessary that the provisions embodied in an amendment to a section of a statute shall relate directly to the particular provisions contained in the section amended. It is sufficient if the subject matter of the amendment is germane to the subject of the act of which the amended section is a part, and is within the title of the original act. Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841; State v. Fargo Bottling Works Co. 19 N.D. 396, 124 N.W. 387; School Dist. v. King, 20 N.D. 614, 127 N.W. 515; Wilson v. Fargo, 48 N.D. 447, 186 N.W. 263; Mandan v. Nichols, 62 N.D. 322, 243 N.W. 740; 59 C.J. p. 818.

Where the title of an act refers to the transportation of property "for hire" or "for compensation," the regulation of shipper-owners may not be included under such title. State v. Manhattan Oil Co. 199 Iowa 1213, 203 N.W. 301; Murphy v. Standard Oil Co. 207 N.W. 92; Leif v. Graham, 63 N.D. 257, 247 N.W. 612; People v. Montgomery, 19 P.2d 205.

An objection to the jurisdiction of the subject matter may be raised for the first time in the appellate court. 2 R.C.L. 88; Sterrett v. Cincinnati Second Nat. Bank, 246 F. 753, 3 A.L.R. 256; Baker v. Denver Tramway Co. 72 Colo. 233, 210 P. 845, 29 A.L.R. 1453; United States Exp. Co. v. Hurlock, 120 Md. 107, 87 A. 834, Ann. Cas. 1915A, 655; Thacker v. Hubard, 122 Va. 379, 94 S.E. 929, 21 A.L.R. 414; Heflinger v. Heflinger, 136 Va. 289, 118 S.E. 316, 32 A.L.R. 1088; Cappon v. O'Day, 165 Wis. 486, 162 N.W. 655, 1 A.L.R. 1657.

P. O. Sathre, Attorney General, and J. A. Heder, Assistant Attorney General, for respondents.

A repealing clause which repeals all acts or parts of acts, in so far as they conflict with the new enactment, or which repeals all acts or parts of acts which are in conflict, is not broader than a repeal by implication, and it repeals pre-existing legislation on the same subject only to the extent of the repugnancy but no farther. Campbell v. Torgerson, 57 N.D. 152, 220 N.W. 834; People v. Sponsler, 1 Dak. 289, 46 N.W. 459; People v. Wambole, 1 Dak. 302, 46 N.W. 463; State ex rel. Gammons v. Sorlie, 56 N.D. 650, 219 N.W. 105.

A citizen may have, under the 14th Amendment, the right to travel and transport his property on the public highways by auto vehicles, but he has no right to make the highway his place of business by using it as a common carrier for hire, and such use is a right which may be granted by the state in its discretion, without violating the due process clause or the equal protection clause. Such statute does not violate the 14th Amendment. Gundling v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L. ed. 725; State v. Goeson, 65 N.D. 706, 262 N.W. 70; State v. Price, 122 Wash. 421, 210 P. 787.

A private carrier is not converted into a common carrier by the Act. Stephenson v. Binford, 53 F.2d 508, 287 U.S. 251, 77 L. ed. 288, 53 S.Ct. 181, 87 A.L.R. 721.

All constitutional inhibitions against the taking of private property without due process of law are for the benefit of those persons only whose rights are affected, and cannot be taken advantage of by any other person. State v. McNulty, 7 N.D. 169, 73 N.W. 87; State v. O'Grady, 7 N.D. 171, 73 N.W. 1102; Turnquist v. Cass County Drain Comrs. 11 N.D. 514, 92 N.W. 852; Ely v. Rosholt, 11 N.D. 559, 93 N.W. 864; Goer v. Taylor, 51 N.D. 792, 200 N.W. 898; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, L.R.A.1918B, 156.

One who is not prejudiced by the enforcement of a state cannot question its constitutionality or obtain a decision as to its invalidity on the grounds that it impairs the rights of others. Olson v. Ross, 39 N.D. 372, 167 N.W. 385; Mohall Farmers Elevator Co. v. Hall, 44 N.D. 430, 176 N.W. 131.

A litigant can be heard to question the validity of a statute only when, and in so far as, it is applied to his disadvantage. State ex rel. Hughes v. Milhollan, 50 N.D. 184, 195 N.W. 292; State v. First State Bank, 52 N.D. 231, 202 N.W. 391; Enderson v. Hildenbrand, 52 N.D. 533, 204 N.W. 356; Minot Special School Dist. v. Olsness, 53 N.D. 683, 208 N.W. 968, 45 A.L.R. 1337; Continental Baking Co. v. Woodring, 286 U.S. 352, 76 L. ed. 1155.

In construing this statute every reasonable presumption is in favor of the constitutionality of the statute, and the contrary will not be held until its unconstitutionality clearly appears. Wilder v. Murphy, 56 N.D. 436, 218 N.W. 156; State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118.

If the statute is susceptible of two constructions the one that will sustain it will be adopted. Northern P.R. Co. v. Barnes, 2 N.D. 310, 51 N.W. 386; Erskine v. Nelson County, 4 N.D. 66, 58 N.W. 348; Wood v. Byrne, 60 N.D. 1, 232 N.W. 303.

It would practically defeat legislation if it was laid down as a rule that a statute must necessarily be adjudged invalid if it did not bring all within it scope or subject all to the same burdens. Cotting v. Kansas City Stock Yards Co. 183 U.S. 111, 46 L. ed. 109, 22 S.Ct. 43; State v. Olson, 26 N.D. 304, 144 N.W. 661; Gunn v. Minneapolis St. P. & S. Ste. M.R. Co. 34 N.D. 418, 158 N.W. 1004.

The legislature may exclude from the provisions of a statute such classes of objects or persons as are not similarly situated with those included therein, in respect to the nature of legislation. Edmonds v. Herbrandson, 2 N.D. 270, 50 N.W. 970; Vermont Loan & T. Co. v. Whithed, 2 N.D. 282, 49 N.W. 318; State ex rel. Amerland v. Hagan, 44 N.D. 306, 175 N.W. 372.

The uniform operation required by the constitution does not mean universal operation. Vermont Loan & T. Co. v. Whithed, 2 N.D. 82, 49 N.W. 318; 6 R.C.L. 373; Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798; 12 C.J. 1128; People v. Metz, 193 N.Y. 148, 85 N.E. 1070, 24 L.R.A.(N.S.) 201; Baird v. Rask, 60 N.D. 432, 234 N.W. 651.

Where there is a reasonable classification a law is not tainted with lack of...