Benson v. Schneider

• Citation: 68 N.W.2d 665
• Decision Date: 23 February 1955
• Docket Number: No. 7484,7484
• Parties: Harry O. BENSON, Plaintiff and Respondent, v. Frank SCHNEIDER, Defendant and Appellant,
• Court: United States State Supreme Court of North Dakota

Page 665

68 N.W.2d 665

Harry O. BENSON, Plaintiff and Respondent, v. Frank SCHNEIDER, Defendant and Appellant,

No. 7484.

Supreme Court of North Dakota.

Feb. 23, 1955.

Syllabus by the Court.

1. Chapter 39-17, NDRC 1953 Supp. which confines to residents of North Dakota the right to have paid from a fund created by exactions from automobile registrants certain uncollectable judgments obtained in actions for damages resulting from bodily injury to or the death of persons occasioned by or arising out of the ownership, maintenance, operation, or use of motor vehicles, is not, as to a nonresident who has not contributed to the fund, violative of the provisions of Article IV, Section 2, of the federal constitution providing that citizens of each state shall be entitled to the privileges and immunities of citizens in the several states or the equal protection of the laws requirement of the Fourteenth Amendment.

2. One who is neither a resident nor a citizen of the state may not challenge the validity of a statute on the ground that it violates Section 20, Article I of the North Dakota Constitution which provides that no citizen or class of citizens shall be granted privileges or immunities which upon the same terms shall not be granted to all citizens.

Teigen & Erickstad, Devils Lake, Paul Benson, Atty. Gen., North Dakota, and Christopher U. Sylvester, Sp. Asst. Atty. Gen., for defendant and appellant.

Duffy & Haugland, Devils Lake, for plaintiff and respondent.

MORRIS, Judge.

In this proceeding the plaintiff, a nonresident, seeks to recover from the Unsatisfied Judgment Fund the sum of $3,767.50 upon a judgment rendered against Frank Schneider for injuries sustained in an automobile collision on the highways of this state. The Unsatisfied Judgment Fund was created by Chapter 274, SLND 1947 which, as amended, now appears as Chapter 39-17, NDRC 1953 Supp. The fund is created by the annual exaction of $1 from the owner of each motor vehicle registered. The exaction is dispensed with in years when the amount of the fund is maintained within certain limits.

Section 39-1703, NDRC 1953 Supp. prescribes conditions under which recovery may be had from the fund as follows:

'Where any person, who is a resident of this state, recovers in any court in this state a judgment for an amount exceeding $300.00 in an action for damages resulting from bodily injury to, or the death of, any person occasioned by, or arising out of, the ownership, maintenance, operation or use of a motor vehicle by the judgment debtor in this state, upon such judgment becoming final, such judgment creditor may, in accordance with the provisions of this Act (chapter), apply to the judge of the district court in which such judgment was rendered, upon notice to the attorney general, for an order directing payment of the judgment out of said fund.'

The statute then prescribes the detailed showing that must be made to establish the right to participate, which includes the issuance of an execution and a return by the sheriff showing the amount realized thereon to be insufficient to satisfy the judgment.

The plaintiff has complied with the provisions of Section 39-1703 with one important exception. He is not a resident of the State of North Dakota. He is a citizen of the United States and a resident of the State of Illinois. The attorney general appeared in defense of the Unsatisfied Judgment Fund and resisted the plaintiff's application upon the sole ground of nonresidence.

The plaintiff asserts that the statutory provision excluding nonresidents from recourse to the fund is violative of the provision of Article IV, Section 2, of the United States Constitution:

'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'

And also the provision of Article XIV of the amendments to the Constitution forbidding a state to deny to any person within its jurisdiction the equal protection of the laws.

The trial court determined that the statute in question was unconstitutional insofar as it excluded the plaintiff from participation in the Unsatisfied Judgment Fund and issued an order directing the state treasurer to pay plaintiff's judgment. From this order the defendant appeals, the appeal being prosecuted by the attorney general of the State of North Dakota.

Section 2 of Article IV does not mean that the rights of nonresidents at all times must equal those of the residents of a state. In Cooley's Constitutional Limitations, Eighth Edition, page 821, we find this general statement:

'Although the precise meaning of 'privileges and immunities' is not very conclusively settled as yet, it appears to be conceded that the Constitution secures in each State to the citizens of all other States the right to remove to, and carry on business therein; the right by the usual modes to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts and the enforcement of other personal rights; and the right to be exempt, in property and person, from taxes or burdens which the property, or persons, of citizens of the same State are not subject to. To this extent, at least, discriminations could not be made by State laws against them. But it is unquestionable that many other rights and privileges may be made--as they usually are--to depend upon actual residence: such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the State, and the like.'

Discriminations against nonresidents have also been held valid with respect to statutes regulating the practice of the law, Keeley v. Evans, D.C., 271 F. 520; see also 5 Am.Jur. Attorneys at Law, Section 21; 7 C.J.S., Attorney and Client, Sec. 7c.; hunting, In re Eberle, C.C., 98 F. 295; Cummings v. People, 211 Ill. 392, 71 N.E. 1031; State v. Gallop, 126 N.C. 979, 35 S.E. 180; requiring nonresidents to give security for costs, Haney v. Marshall, 9 Md. 194; and the right to sell intoxicating liquor, Mette v. McGuckin, 18 Neb. 323, 25 N.W. 338; Welsh v. State, 126 Ind. 71, 25 N.E. 883, 9 L.R.A. 664; DeGrazier v. Stephens, 101 Tex. 194, 105 S.W. 992, 16 L.R.A.,N.S., 1033, 16 Ann.Cas. 1059.

In Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, Ann.Cas. 1917B, 287, it was held that the provisions of a New York Labor Law that only citizens of the United States shall be employed on public works and that preference shall be given to citizens of the State of New York were not unconstitutional as violative of the privileges and immunities clause of the Constitution of the United States or the equal protection or due process clause of the Fourteenth Amendment.

City and County of Denver v. Bossie, 83 Colo. 329, 266 P. 214, 217, involved a statute that required the city to use materials purchased in Colorado. The court said:

'In the course of our consideration of this case, some of us have been in doubt as to the constitutionality of the said sections 453-455, lest they might amount to a restriction of commerce between states, and subvert or abridge the right of citizens of other states, or deny equal protection of the laws, but our doubts are set at rest by Heim v. McCall, 239 U.S. 175, 36 S.Ct. 78, 60 L.Ed. 206, which holds that the state may buy of whom it will, and that the municipalities are mere instruments of the state, and so must buy as the state directs.'

In State v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, the court considered a statute prohibiting the letting by boards of supervisors of counties of contracts to furnish the county with blank books, stationery, etc. to any bidder who was not a resident of the state or who did not have a printing plant in the state or who was not a bona fide resident of the state actually engaged in the printing business. It was there held that the act in question in no way violated any provision of the federal constitution. See also Tribune Printing & Binding Co. v. Barnes, 7 N.D. 591, 75 N.W. 904.

The plaintiff in support of his contention that the exclusion of nonresidents from participating in the Unsatisfied Judgment Fund infringes on the rights of citizens of other states to the full enjoyment of the privileges and immunities guaranteed by the constitution cites and quotes from Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 172, 43 L.Ed. 432. We do not believe that case supports the plaintiff's position here. It held that when establishing regulations for the conduct of private business of a particular kind, a state may not give to its own citizens essential privileges connected with that business which it denies to citizens of other states and that as a consequence a state cannot constitutionally discriminate in favor of resident creditors of an insolvent as against nonresident creditors. The court makes this pertinent comment:

'The constitution forbids only such legislation affecting citizens of the respective states as will substantially or practically put a citizen of one state in a condition of alienage when he is within or when he removes to another state, or when asserting in another state the rights that commonly appertain to those who are part of the political community known as the people of the United States, by and for whom the government of the Union was ordained and established.'

The plaintiff, both on oral argument and in the...