Goer v. Taylor

• Decision Date: 25 November 1924
• Parties: GOER et al. v. TAYLOR, State Law Librarian, et al.
• Court: North Dakota Supreme Court

51 N.D. 792

200 N.W. 898

GOER et al.

v.TAYLOR, State Law Librarian, et al.

Supreme Court of North Dakota.

June 4, 1924.

Rehearing Denied Nov. 25, 1924.

Syllabus by the Court.

Chapter 69 of the Laws of 1919, known as the State Bar Board Act, is a regulatory measure, and the license fee therein prescribed is a regulatory exaction.

The licensees, under a regulatory statute, have not, as mere licensees, such an interest in the fund resulting from the license fees thereunder exacted as will clothe them with the right to challenge the constitutionality of an enactment disposing of such fund.

The State Bar Board, appointed under the provisions of c. 69, Laws 1919, as a board, has not such an interest in the funds resulting from the exactions imposed by said chapter 69 as will clothe it with the right to challenge the constitutionality of an act disposing of the excess of such funds above the cost of carrying out the regulatory provisions thereof.

A party whose rights it does not affect may not challenge the constitutionality of a legislative enactment.

“Where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and therefore render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for a consideration until a case arises which cannot be disposed of without considering it, and when, consequently, a decision upon such question will be unavoidable.”

Bronson, C. J., dissenting.

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

Action by R. Goer and others, individually and as members of the State Bar Board, against E. J. Taylor, State Law Librarian, and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.Knauf & Knauf, of Jamestown, for appellants.

George F. Shafer, Atty. Gen., and John Thorpe, Asst. Atty Gen., for respondents.

NUESSLE, J.

Chapter 69 of the Laws of 1919, known as the State Bar Board Act, amended certain sections of the Compiled Laws of 1913 relating to the admission to practice and regulation of attorneys at law within the state of North Dakota, and created a board known as the State Bar Board. The act provided for the appointment of the board by the Governor, fixed the term of office of the members thereof, prescribed their duties, provided for their compensation, and at section 9 thereof amended section 811 of the Compiled Laws of North Dakota for the year 1913, to read as follows:

“No person shall be entitled to practice law or act as attorney or counselor at law in this state unless such person shall first secure a certificate of admission to the bar and in addition to the fee provided for securing such certificate shall pay the clerk of the Supreme Court an annual license fee of $15. The said clerk of the Supreme Court shall in his ex officio capacity as the treasurer of such State Bar Board deposit such license fee with the state treasurer to be kept in a fund known as the state bar fund to be disbursed therefrom only in the manner hereinbefore provided to defray the expenses of the State Bar Board. * * *”

At the 1923 regular session, the Legislature enacted and the Governor subsequently approved chapter 134, S. L. 1923, amending chapter 69, S. L. 1919. The 1923 act abolished the old bar board and provided for the creation of a new board to be appointed by the Supreme Court and re-enacted the remainder of the 1919 act in substantially its original form, excepting that by section 9 of the 1923 act, section 811, C. L. 1913, as amended by chapter 69, S. L. 1919, was amended to read as follows:

“No person shall be entitled to practice law or act as attorney or counselor at law in this state unless such person shall first secure a certificate of admission to the bar. Such certificateshall be issued upon payment of the fee provided therefor and, in addition thereto, the further payment of the annual license fee of ten dollars. From the moneys heretofore accumulated and now on hand in the state bar fund, there is hereby appropriated the sum of $10,000 to be expended under the direction of the Supreme Court for purchase and repair of books in the state law library. The clerk of the Supreme Court shall, in his ex officio capacity, as the treasurer of said Bar Board, deposit all license fees with the state treasurer to be by him kept in a fund known as the state bar fund, the same to be disbursed therefrom only in the manner herein provided. * * *”

The plaintiffs, R. Goer, S. E. Ellsworth, and C. J. Fisk, were appointed members of the State Bar Board under the provisions of chapter 69, S. L. 1919. They constituted the State Bar Board at the time of the initiation of this action. The defendants are E. J. Taylor, Supreme Court reporter and state law librarian, J. H. Newton, clerk of the Supreme Court, D. C. Poindexter, state auditor, and John Steen, state treasurer, of the state of North Dakota.

Chapter 134, S. L. 1923, went into effect July 1, 1923. In May, 1923, the plaintiffs began this action, bringing the same as individuals and as the State Bar Board. In their complaint they alleged that they were appointed as members of and were qualified and acting as the State Bar Board; that the defendants held the respective official positions as hereinbefore set out; that unless enjoined from so doing, defendants would purchase and repair law books for and in the state law library, and pay therefor from the state bar fund, under the terms of chapter 134, S. L. 1923; that the plaintiffs individually have paid and contributed the license fee of $15 annually to the said bar fund since the enactment of chapter 69, supra, and therefore have a personal interest in such fund to the extent of such contributions; that, as the State Bar Board, they are concerned with the performance of the duties of such board and the payment of the bills incurred thereby; that as such they are the trustees of the said state bar fund; and that, therefore, officially and as a board, they have an interest in and are concerned on account of the said bar fund; that chapter 134, S. L. 1923, is unconstitutional and void by reason of the fact that it contravenes various provisions of the Constitution of the state of North Dakota, and the plaintiffs pray.

“(1) A declaratory judgment from this court, declaring that the funds aforesaid cannot and shall not be impressed with or to other purposes than those expressed in the said act, chapter 69, Session Laws of North Dakota 1919.

(2) That the said act, Senate Bill, No. 284 (chapter 134, S. L. 1923), passed by the Legislative Assembly of North Dakota for the year 1923, be declared null and void for the reasons and on the grounds hereinbefore set out, and that this court issue its declaratory judgment under the enactment of the North Dakota Legislature, being House Bill No. 210, passed and approved by the 1923 Legislative Assembly of North Dakota, and that said enactment be declared of no force or effect and as unconstitutional under sections 61, 62, and 282 (182) of the Constitution of North Dakota.

The plaintiffs further pray that the defendants, and each of them, severally and jointly, be forever restrained and forbidden to use any of said funds, aforesaid, under the section 9 of the Senate Bill No. 284, being in lieu of section ‘811’ of the 1913 Compiled Laws of North Dakota, for the purpose of purchasing or repairing state law library books, and that the whole of said Senate Bill No. 284, be set aside as null and void for the reasons hereinbefore set forth, and for such other and further relief as to this honorable court may seem meet, proper, and just in the premises, and for costs and disbursements.”

The Attorney General, appearing for the defendants, interposed a demurrer to the complaint on the grounds:

“(1) That the court has no jurisdiction of the subject of the action.

(2) That the plaintiffs and the petitioners have not legal capacity to sue.

(3) That there is a defect of parties defendant, in this that the Supreme Court of North Dakota has not been made a party defendant.

(4) That the petition and complaint does not state facts sufficient to constitute a cause of action.”

The matter came on to be heard before the district court of Burleigh county, and the demurrer so interposed was sustained. The case is now here on appeal from the order sustaining such demurrer. The demurrer interposed by the Attorney General challenges the right of the plaintiffs or either of them to maintain the action, and further challenges the sufficiency of the allegations of the complaint to warrant the court in awarding any relief.

[1] It appears to us that the first question which presents itself in the consideration of the propositions which are raised in this case is the question of the character of the license fee imposed by the Bar Board Act and the fund resulting therefrom. It will be noted, first, that there is no question here raised as to the constitutionality of the act in so far as it provides for the imposition of an annual license fee as a prerequisite to the right of an attorney to practice in the courts of record of this state. In any event, we think it is clear that the Legislature has the right to impose a proper occupational charge. Such charge may be imposed either for the purpose of producing revenue, in which case, as a tax, it is subject to the requirements of section 175 of the Constitution (see State v. Klectzen, 8 N. D. 286, 78 N. W. 984), or as a purely regulatory exaction. If imposed for the latter purpose it is subject only to the requirements that the regulatory provisions be reasonable and that the charge or fee be not to any considerable extent greater in amount than is reasonably necessary to carry out the regulatory provisions. See State v. Klectzen, supra; Bartels Northern Oil v....