Hosp v. Cass Cnty., No. 6818.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtCHRISTIANSON
Citation72 N.D. 359,7 N.W.2d 438
Docket NumberNo. 6818.
Decision Date02 January 1943
PartiesASBURY HOSPITAL v. CASS COUNTY et al.

72 N.D. 359
7 N.W.2d 438

ASBURY HOSPITAL
v.
CASS COUNTY et al.

No. 6818.

Supreme Court of North Dakota.

Jan. 2, 1943.


Appeal from District Court, Cass County; Swenson, Judge.

Action for a declaratory judgment by Asbury Hospital, a corporation, against Cass County, R. F. Croal, as State's Attorney of Cass County, and his successors in office, and Alvin C. Strutz, as Attorney General, and his successors in office, to secure a judicial declaration that certain real property owned by the plaintiff in Cass County is not subject to the provisions of an initiative measure, adopted June 29, 1932, entitled “An Act prohibiting corporation farming and relating to corporations acquiring and holding real estate not necessary in the operation of their business.” Laws 1933, p. 494.

From an order sustaining a demurrer to the complaint, the plaintiff appeals.

Affirmed.

[7 N.W.2d 441]


Syllabus by the Court.

1. The Declaratory Judgments Act, Supp.1925, Sections 7712a1-7712a16, is intended to provide a method whereby parties to a justiciable controversy may have the same determined by a court in advance of any invasion of rights or breach of obligation. But no action or proceeding lies under the Declaratory Judgments Act to obtain a decision which is merely advisory, or which determines only abstract questions. The action or proceeding must involve an actual controversy of a justiciable character between parties having adverse interests.

2. In the instant case it is held, for reasons stated in the opinion, that a controversy as to whether a statute which requires

[7 N.W.2d 442]

corporations to dispose of certain rural real estate within a prescribed period is applicable to the plaintiff and to certain real estate owned by it, is one properly determinable under the Declaratory Judgments Act.

3. Where the language of a statute is clear, certain and unambiguous, the courts have only the simple and obvious duty to give effect to the intention which the legislature has thus expressed.

4. Initiative Measure, adopted June 29, 1932, Laws 1933, pp. 494, 495, as amended by Laws 1933, Ch. 89, and Laws 1935, Ch. 111, which provides that “all corporations, both domestic and foreign, who now own or hold rural real estate, used or usable, for farming or agriculture, except such as is reasonably necessary in the conduct of their business, shall dispose of the same within ten years from the date that this Act takes effect”, and that in case any corporation fails within the time fixed to dispose of such real estate, then “title to such real estate shall escheat to the county in which such real estate is situated upon an action instituted by the States Attorney of such county”, does not mean that corporations are required to dispose only of real estate that had been acquired, and was being held, ultra vires.

5. Such Initiative Measure, as amended, does not ipso facto effect an escheat if a corporation fails to dispose of real estate within the prescribed period. The holding of real estate, which the statute requires a corporation to dispose of, beyond the prescribed period, constitutes a basis for an action to effect escheat; but the corporation continues to own and hold the real estate until title is divested by judgment rendered in the action brought to effect the escheat.

6. A corporation can have no legal existence beyond the bounds of the State which created it; and, although it may act in another State, it cannot do so as a legal or constitutional right but only by the comity and consent of such State.

7. Subject to the constitutional limitations that a State cannot exclude a corporation engaged in interstate commerce, or a corporation that is an agency or instrumentality of the Federal Government, a State may prohibit foreign corporations from doing business therein, or it may make the right to do business depend on such terms and conditions as in its discretion it may see fit to impose.

8. A foreign corporation which does business or carries on any activity in a State through comity or acquiescence, or under a license given without valuable consideration, does not have a contract binding the State not to restrict the activities of the corporation in, or to exclude it from, the State.

9. A State may prohibit all foreign corporations, which it might exclude from the State, from acquiring real estate therein for any purpose. The State, also, has the power to require all foreign corporations, which it might exclude from the State, to dispose of all real estate not reasonably necessary in the conduct of their business, provided it affords such corporations a reasonable time in which to dispose of such real estate.

10. For reasons stated in the opinion, it is held, that the requirement of the statute that corporations dispose of real estate of the character described in the statute, which the corporations owned when the statute became effective, within ten years thereafter, did not, nor did the procedure prescribed by the statute, operate to deprive the plaintiff of property without due process.

11. The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.

12. The “equality-of-the laws” clause of the 14th Amendment to the Constitution of the United States, and the “uniformity of operation” requirement of Section 11 of the State Constitution do not forbid classification.

13. Classification is primarily for the legislature; and in determining the validity of legislative classification, judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question whether it is so lacking in any reasonable basis as to be arbitrary.

14. There are such distinctions between general corporations and cooperative corporations as to justify classification, and different treatment as to each of such classes.

15. One may attack the constitutionality of a statute only when, and so far as it is being, or is about to be, applied to his disadvantage; and to raise the constitutional question he must show that the alleged unconstitutional feature of the statute injures him and so operates as to deprive him of a constitutional right.

[7 N.W.2d 443]

16. A corporation is not a citizen within the meaning of the provisions of the Constitution of the United States (Section 2, Article 4, and Section 1, 14th Amendment) as to privileges and immunities of citizens.


Nilles, Oehlert & Nilles, of Fargo (Abbott L. Fletcher, of Minneapolis, Minn., of counsel), for appellant.

Alvin C. Strutz, Atty. Gen., and Wm. R. Pearce, Asst. Atty. Gen., and Ralph F. Croal, State's Atty. of Cass County, of Fargo, for respondents.


Traynor & Traynor and Sinness & Duffy, all of Devils Lake, Burnett, Bergesen & Haakenstad, of Fargo, C. L. Young, of Bismarck, R. G. Beede, of Elgin, and Karl Baldwin, of Appleton, Wis., amici curiae.

CHRISTIANSON, Judge.

Plaintiff brought this suit in the District Court of Cass County, under the Uniform Declaratory Judgments Act of this State (Ch. 237, Laws 1923, Supp.1925, Sections 7712a1-7712a16), to secure a judicial declaration that certain real property owned by the plaintiff is not subject to the provisions of an initiative measure, adopted June 29, 1932, entitled “An Act prohibiting corporation farming and relating to corporations acquiring and holding real estate not necessary in the operation of their business”, Laws 1933, pp. 494, 495, and amended by Ch. 89, Laws 1933, and Ch. 111, Laws 1935. The Initiative Measure as amended by Ch. 89, Laws 1933, reads as follows:

“That all corporations, both domestic and foreign, except as otherwise provided in this Act, are hereby prohibited from engaging in the business of farming or agriculture.” Sec. 1, Ch. 89, Laws 1933.

“That all corporations, both domestic and foreign, who now own or hold rural real estate, used or usable, for farming or agriculture, except such as is reasonably necessary in the conduct of their business, shall dispose of the same within ten years from the date that this Act takes effect, provided that during said ten year period said corporations may farm and use said real estate for agricultural purposes provided further that the ten year limitation provided by this Section shall be deemed a covenant, running with the title to the land against any grantee, successor of (or) assignee of such corporation, which is also a corporation.” Sec. 2, Ch. 89, Laws 1933.

“That any corporation, either domestic or foreign, that acquires any rural real estate, used or usable, for farming or agriculture, by judicial process or operation of law, hereafter, except such as is reasonably necessary in the conduct of its business, shall dispose of such real estate within ten years from the date that it is so acquired, provided that during said ten year period it may farm and use the same for agricultural purposes, provided further that the ten year limitation provided by this Section shall be deemed a covenant, running with the title to the land, against any grantee, successor (of) or assignee of such corporation, which is also a corporation.” Sec. 3, Ch. 89, Laws 1933.

“That the title and ownership of any real estate acquired, in any manner, by any domestic or foreign corporation, since the approval and adoption of the aforesaid initiated law, is hereby declared to be legal and valid for all purposes, notwithstanding any provisions in said initiated law contained, but subject however, to all of the provisions now contained in said initiated law as hereby amended and re-enacted.” Sec. 4, Ch. 89, Laws 1933.

“That nothing in this act shall be construed to prohibit cooperative corporations, seventy-five per cent of whose members of stockholders are actual farmers, residing in (on) farms or depending principally on farming for their livelihood, from acquiring real estate and engaging in cooperative farming or agriculture.” Sec. 4, Initiated Measure, Laws 1933, pp. 494, 495.

[7 N.W.2d 444]

“That in case...

To continue reading

Request your trial
45 practice notes
  • Haney v. North Dakota Workers Compensation Bureau, No. 930324
    • United States
    • United States State Supreme Court of North Dakota
    • June 15, 1994
    ..." Manikowske v. North Dakota Workmen's Compensation Bureau, 338 N.W.2d 823, 825 (N.D.1983), quoting Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 442 Syllabus p 11 Article I, Sec. 21, N.D. Const., has long been "viewed as our state constitutional guarantee of equal protection u......
  • Johnson v. Hassett, No. 8968
    • United States
    • United States State Supreme Court of North Dakota
    • March 29, 1974
    ...a steady course of constitutional adjudication. Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798 (1932); Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943), 73 N.D. 469, 16 N.W.2d 523 (1944), affirmed, 326 U.S. 207, 66 S.Ct. 61, 90 L.Ed. 6; State v. Cromwell, 72 N.D. 565, 9 N.W......
  • State ex rel. Olson v. Maxwell, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • November 4, 1977
    ...disadvantage and the one attacking the constitutionality is not a champion of any rights except his own. Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943). For other cases stating the same principle of law see 4 Dakota Digest, Constitutional Law Page 634 We have also held tha......
  • Ficek v. Morken, No. 20030295.
    • United States
    • United States State Supreme Court of North Dakota
    • August 4, 2004
    ...Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 914 (N.D.1985) (quoting Syllabus ¶ 11, Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943)). The legislature is much better suited than courts to identify or set the public policy in this state. Haff v. Hettich, 1999 ND 9......
  • Request a trial to view additional results
45 cases
  • Haney v. North Dakota Workers Compensation Bureau, No. 930324
    • United States
    • United States State Supreme Court of North Dakota
    • June 15, 1994
    ..." Manikowske v. North Dakota Workmen's Compensation Bureau, 338 N.W.2d 823, 825 (N.D.1983), quoting Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 442 Syllabus p 11 Article I, Sec. 21, N.D. Const., has long been "viewed as our state constitutional guarantee of equal protection u......
  • Johnson v. Hassett, No. 8968
    • United States
    • United States State Supreme Court of North Dakota
    • March 29, 1974
    ...a steady course of constitutional adjudication. Peterson v. Panovitz, 62 N.D. 328, 243 N.W. 798 (1932); Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943), 73 N.D. 469, 16 N.W.2d 523 (1944), affirmed, 326 U.S. 207, 66 S.Ct. 61, 90 L.Ed. 6; State v. Cromwell, 72 N.D. 565, 9 N.W......
  • State ex rel. Olson v. Maxwell, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • November 4, 1977
    ...disadvantage and the one attacking the constitutionality is not a champion of any rights except his own. Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943). For other cases stating the same principle of law see 4 Dakota Digest, Constitutional Law Page 634 We have also held tha......
  • Ficek v. Morken, No. 20030295.
    • United States
    • United States State Supreme Court of North Dakota
    • August 4, 2004
    ...Stokka v. Cass County Elec. Coop., Inc., 373 N.W.2d 911, 914 (N.D.1985) (quoting Syllabus ¶ 11, Asbury Hospital v. Cass County, 72 N.D. 359, 7 N.W.2d 438 (1943)). The legislature is much better suited than courts to identify or set the public policy in this state. Haff v. Hettich, 1999 ND 9......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT