McDonald v. Hanson

• Decision Date: 18 April 1917
• Citation: 164 N.W. 8,37 N.D. 324
• Court: North Dakota Supreme Court

164 N.W. 8

37 N.D. 324

HUGH MCDONALD et al. v. O. I. HANSON et al

Supreme Court of North Dakota

April 18, 1917

Rehearing denied July 25, 1917.

Appeal from the District Court of Traill County, Honorable Chas. A Pollock, Judge.

Affirmed.

Judgment affirmed, with costs.

Carmody & Leslie, for appellants.

A law general in its form, but special in its operation, violates a constitutional inhibition of special legislation as much as if special in form. For the purpose of applying different rules to different subjects, the legislature cannot adopt a mere arbitrary classification. Nichols v. Walter, 37 Minn. 264, 33 N.W. 800; Scowden's Appeal, 96 Pa. 422; Vermont Loan & T. Co. v. Whithed, 2 N.D. 82, 49 N.W 318; State, Anderson, Prosecutor, v. Trenton, 42 N.J.L. 486; McCarthy v. Com. 110 Pa. 243, 2 A. 423, 5 A. 215; Morrison v. Bachert, 112 Pa. 322, 5 A. 739; State, Closson, Prosecutor v. Board of License & Excise, 48 N.J.L. 438, 5 A. 323; Edmonds v. Herbrandson, 2 N.D. 270, 14 L.R.A. 725, 50 N.W. 970; Davis v. Clark, 106 Pa. 377; Com. ex rel. Fertig v. Patton, 88 Pa. 258; Scranton School Dist.'s Appeal, 113 Pa. 176, 6 A. 159; State, Highstown, Prosecutor v. Glenn, 47 N.J.L. 105; State, Long Branch Police, Prosecutor, v. Sloane, 49 N.J.L. 356, 8 A. 101.

A law which attempts to give to cities of more than a certain number in population certain rights as to granting licenses not extended to other cities is unconstitutional and void. State, Clark, Prosecutor, v. Cape May, 50 N.J.L. 558, 14 A. 581; State, Highstown, Prosecutor, v. Glenn, 47 N.J.L. 105; State, Long Branch Police, Prosecutor, v. Sloane, 49 N.J.L. 356, 8 A. 101.

Such a law must stand on some reason, having regard to the classification. State ex rel. Dorval v. Hamilton, 20 N.D. 592, 129 N.W. 916; Edmonds v. Herbrandson, 2 N.D. 270, 14 L.R.A. 725, 50 N.W. 970.

Proper classification is permitted, but arbitrary and unreasonable discrimination is forbidden. Beleal v. Northern P. R. Co. 15 N.D. 318, 108 N.W. 33, 11 Ann. Cas. 921, 20 Am. Neg. Rep. 453; Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 155, 41 L.Ed. 668, 17 S.Ct. 257; Powers Elevator Co. v. Pottner, 16 N.D. 359, 113 N.W. 703.

The Constitution of the United States guarantees equal protection of the laws to all persons, and there can be in the law no provision for taxation by arbitrary classification, but classifications must be founded upon real differences in situation and condition, affording rational ground for difference in treatment. Northwestern Mut. L. Ins. Co. v. State, 163 Wis. 484, 155 N.W. 609, 158 N.W. 328.

P. G. Swenson, for respondents.

The petition was wholly sufficient and was heard and acted upon at the proper time and place by the proper tribunal. All opportunity was given the voters and taxpayers to appear and offer suggestions and objections. Sess. Laws 1915, chap. 135; Comp. Laws 1913, § 1147; Tallmadge v. Walker, 34 N.D. 590, 159 N.W. 71.

In the organization of common-school districts, laws restricting as to area, population, and valuation, and providing modes of procedure, are not in conflict with any provision of the Constitution. Such laws are general and uniform in their operation throughout the state. Laws 1915, chap. 135; Pol. Code, art. 2, chap. 4; Comp. Laws 1913, § 4079; Pol. Code, art. 1, chaps. 44, 47; Dill. Mun. Corp. 4th ed. § 54.

A provision requiring uniformity of legislation does not mean that all laws must embrace all persons or localities. 6 R. C. L. §§ 414-415; Eckerson v. Des Moines, 137 Iowa 452, 115 N.W. 177; Hanlan v. Floyd County, 53 Ind. 123; Wisconsin C. R. Co. v. Superior, 152 Wis. 464, 140 N.W. 79; Dawson Soap Co. v. Chicago, 234 Ill. 314, 84 N.E. 920, 14 Ann. Cas. 1131; Wall v. St. Louis County, 105 Minn. 403, 117 N.W. 611; Allan v. Kennard, 81 Neb. 289, 116 N.W. 63; State ex rel. Linde v. Taylor, 33 N.D. 76, L.R.A. , , 156 N.W. 561; State ex rel. Hagen v. Anderson, 22 N.D. 65, 132 N.W. 433; Albright v. Sussex County Lake and Park Commission, 68 N.J.L. 523, 53 A. 612; State ex rel. Bray v. Long, 21 Mont. 26, 52 P. 645.

A law is not local or special because it classifies counties and townships on the basis of population, resting on a difference in situation or needs. School Dist. v. King, 20 N.D. 614, 127 N.W. 515; Dill. Mun. Corp. 4th ed. § 185; Cooley, Const. Lim. 6th ed. p. 228; Pittsburg's Petition, 217 Pa. 227, 120 Am. St. Rep. 845, 66 A. 348; Valverde v. Shattuck, 19 Colo. 104, 41 Am. St. Rep. 208, 34 P. 947; Cicero v. Haas, 244 Ill. 551, 91 N.E. 574; McCarter v. McKelvey, 78 N.J.L. 3, 138 Am. St. Rep. 583, 74 A. 316; Holmes & B. Furniture Co. v. Hedges, 13 Wash. 696, 43 P. 944; State ex rel. Bray v. Long, 21 Mont. 26, 52 P. 645; Dawson Soap Co. v. Chicago, 234 Ill. 314, 84 N.E. 920, 14 Ann. Cas. 1131; Hunter v. Tracy, 104 Minn. 378, 116 N.W. 922; Eckerson v. Des Moines, 137 Iowa 452, 115 N.W. 177; State ex rel. Douglas v. Westfall, 85 Minn. 437, 57 L.R.A. 297, 89 Am. St. Rep. 571, 89 N.W. 175; State ex rel. Baughn v. Ure, 91 Neb. 31, 135 N.W. 224; Douglas v. People, 225 Ill. 536, 8 L.R.A.(N.S.) 1116, 116 Am. St. Rep. 162, 80 N.E. 341; Albright v. Sussex County, Lake & Park Commission, 68 N.J.L. 523, 53 A. 612; State ex rel. Probtsfield v. Sharp, 27 Minn. 38, 6 N.W. 408; Wall v. St. Louis County, 105 Minn. 403, 117 N.W. 611; State ex rel. Larson v. Scott, 110 Minn. 461, 126 N.W. 70; State v. Standley, 76 Iowa 215, 40 N.W. 815; Rev. Codes 1905, § 3013, Comp. Laws 1913, § 4051; State ex rel. Hagen v. Anderson, 22 N.D. 65, 132 N.W. 433; State ex rel. Linde v. Taylor, 33 N.D. 76, L.R.A. , , 156 N.W. 561; People v. McBride, 234 Ill. 146, 123 Am. St. Rep. 82, 84 N.E. 865, 14 Ann. Cas. 994.

GRACE, J. ROBINSON, J., concur in result.

OPINION

GRACE, J.

What may be termed the pleadings in this action are composed of a petition for a writ of certiorari and the return to such writ. Omitting the title and formal parts of such writ, the same is as follows, to wit:

To the above-named court and judge thereof: Now come the above-named plaintiffs and upon the affidavit of Hugh McDonald, Henry A. Gordon, George Vettel, and George Wright, four of the above-named plaintiffs, and upon the affidavit of John Carmody, both of which affidavits are hereto attached, petition and pray said court and judge thereof that a writ of certiorari may be issued directed to the above-named defendants and requiring said defendants and each thereof to certify fully to the said court issuing said writ at a specified time and place within said writ to be specified, all the proceedings by you or any of you taken in the matter of the attempt to divide Caledonia school district in Traill county or create or organize a new district consisting of the civil township of Herberg, which now constitutes a part of said school district, and to annex to the writ a transcript of the record and proceedings therein described and referring to them with convenient certainty, and also a statement of all other matters and proceedings pertaining to matters mentioned in said affidavits by them or any of them had, in order that the proceedings had as mentioned in said affidavit to it and that such proceedings may be reviewed by your Honorable Court, and do further pray that by said writ the parties of the defendant and each of them be required to desist from further proceedings from the matters stated in and reviewed in said writ of certiorari and thus your petitioners will ever pray.

Dated this 22d day of July, A. D. 1916.

John Carmody,

C. E. Leslie.

Attorneys for the above-named plaintiffs.

The petition for writ of certiorari was supported by the affidavit of Hugh McDonald, H. C. Gordon, George Vettel, and George Wright, to the effect that all of the plaintiffs were resident voters, taxpayers, and freeholders in Caledonia school district. The affidavit further sets forth the names of the board of county commissioners, the county auditor, and the county superintendent of Traill county, who were the acting and duly qualified officers during the times involved in such petition. It is further stated and described in such affidavit all the territory included in Caledonia school district as it then existed, and that Hugh McDonald, George Wright, and Henry Gordon did at such time constitute the school board of Caledonia school district. Such affidavit further describes the number and character of the school buildings within the school district of Caledonia as it then existed, describing among others a large school building the estimated value of which was $ 6,000, all of which schools were maintained at an expense of about $ 4,000 per year. That in the year 1915 a vote was had to build a consolidated school building in Bingham township at a cost of $ 6,000 and a maintenance cost of $ 3,000 per year. Said affidavit further alleges that the residents and voters of the school district consisting of Herberg township had taken no interest in school matters, did not attend school meetings, and in many instances neglected and refused to send their children to school. And further alleges that a petition was filed on April 29, 1916, with the board of county commissioners of Traill county by residents of Herberg township for a separate school district, to be known as Herberg School District of Traill County, and that thereafter the county superintendent of Traill county attempted to give notice of a hearing of said petition by publication of such notice in the Hillsboro Banner, in the said county of Traill such notice being published in such paper on June 2d, 9th, 16th, 23d, and 30th, and such notice was signed by Guri Wambheim, then county superintendent, and was dated the 31st day of May, 1916. That pursuant to such notice the county commissioners and the said county superintendent on the 19th day of July,...