Melland v. Johanneson

• Citation: 160 N.W.2d 107
• Decision Date: 03 July 1968
• Docket Number: No. 8473,8473
• Parties: Robert B. MELLAND, Warren G. Allen, John Decker, J. R. Bernabucci, Jr., Donald A. Peterson, Roger T. Melroe, and Clinton Ottmar, each for themselves and all others similarly situated, Plaintiffs and Respondents, v. Heigi JOHANNESON, as Attorney General for the State of North Dakota, and his successors in office, and Ben Meier, as the Secretary of State of the State of North Dakota, and his successors in office, Defendants and Appellants.
• Court: United States State Supreme Court of North Dakota

Page 107

160 N.W.2d 107

Robert B. MELLAND, Warren G. Allen, John Decker, J. R Bernabucci, Jr., Donald A. Peterson, Roger T. Melroe, and Clinton Ottmar, each for themselves and all others similarly situated, Plaintiffs and Respondents, v. Heigi JOHANNESON, as Attorney General for the State of North Dakota, and his successors in office, and Ben Meier, as the Secretary of State of the State of North Dakota, and his successors in office, Defendants and Appellants.

No. 8473.

Supreme Court of North Dakota.

July 3, 1968.

Syllabus by the Court

1. In light of the great importance of this case and in light of N.D.C.C. § 32--23--12, which requires that our declaratory judgment statutes be construed and administered liberally, we find that a justiciable controversy exists between the defendants and each of the plaintiffs.

2. A law enacted by the legislature is presumed to be constitutional unless it is shown that it is manifestly violative of the organic law.

3. In considering challenges to the constitutionality of an initiated measure, every reasonable presumption in favor of its constitutionality prevails.

4. Whether a holding shall be adhered to or modified or overruled is a question within the discretion of the court under the circumstances of the case under consideration.

5. Sections 11 and 20 of the North Dakota Constitution and § 1 of the fourteenth amendment to the United States Constitution do not prohibit or prevent classification, provided such classification is reasonable for the purpose of legislation, is based on proper and justifiable distinctions considering the purpose of the law, is not clearly arbitrary, and is not a subterfuge to shield one class or to burden another or to oppress unlawfully in its administration.

6. A proper classification for legislative purposes must embrace all who naturally belong to the class.

7. Legislation cannot arbitrarily divide a class into two parts and constitute a different rule of law governing each of the parts.

8. That feature of N.D.C.C. § 54--03--21 which distinguishes between legislators who render services or do business with the State or its subdivisions, depending on whether they render services or do business in excess of or less than $10,000 in any calendar year, constitutes an arbitrary classification, one that cannot be supported by reason, which causes the section to fall as being in contravention of §§ 11 and 20 of the North Dakota Constitution and § 1 of the fourteenth amendment to the United States Constitution as a denial of the equal protection of the laws.

9. That feature of N.D.C.C. § 54--03--21 which distinguishes between a stockholder-legislator and his spouse and an employee-legislator and his spouse by permitting a partnership, corporation, or association which employs a legislator to do any amount of business with the State or its subdivisions but prevents a similar partnership, corporation, or association from doing more than $10,000 business with the State or its subdivisions if any of its members or stockholders or their spouses owning five per cent or more of its assets serves in the legislature constitutes an arbitrary classification, which causes the section to fall as being in contravention of §§ 11 and 20 of the North Dakota Constitution and § 1 of the fourteenth amendment to the United States Constitution as a denial of the equal protection of the laws.

Helgi Johanneson, Atty. Gen., and Paul M. Sand, First Asst. Atty. Gen., Bismarck, attorneys for appellants.

Rausch & Chapman, Bismarck, Degnan, McElroy, Lamb & Camrud, Grand Forks, Hjellum, Weiss, Nerison & Jukkala, Jamestown, and Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for respondents.

ERICKSTAD, Judge.

The plaintiffs, Robert B. Melland, Warren G. Allen, John Decker, J. R. Bernabucci, Jr., Donald A. Peterson, Roger T. Melroe, and Clinton Ottmar, for themselves and others similarly situated, brought this action for declaratory relief under N.D.C.C. ch. 32--23, and N.D.R.Civ.P. 57. They sought to have N.D.C.C. § 54--03--21 declared illegal as being in violation of the North Dakota and United States Constitutions. In addition, they asked that the Secretary of State be restrained from placing the referral of Senate Bill 232 of the Fortieth Legislative Assembly, which repealed § 54--03--21, on the ballot for consideration by the people at the general election of 1968.

The District Court of Burleigh County found § 54--03--21 unconstitutional, as in violation of §§ 11, 13, 20, 28, 34, 121, and 211 and of Article 40 of the North Dakota Constitution. It also enjoined the Secretary of State from placing the referred measure on the ballot in the general election of 1968 and from expending public moneys relative thereto.

The defendants, Helgi Johanneson, as Attorney General for the State of North Dakota, and Ben Meier, as Secretary of State for the State of North Dakota, have appealed from the judgment of the district court and demand a trial de novo in the Supreme Court.

Section 54--03--21 was adopted as a result of the initiative process in the primary election of June 29, 1954. The 1967 session of the Legislative Assembly passed Senate Bill 232 to repeal § 54--03--21. The Governor vetoed the bill on February 23, 1967, and the Legislative Assembly overrode the veto on February 25, 1967. The bill is now designated as chapter 380 of the 1967 Session Laws.

After the overriding of the veto, petitions to refer Senate Bill 232 to the electorate at the general election to be held November 5, 1968, were circulated and ultimately filed with the Secretary of State. The petitions and the signatures thereto have been declared by the Secretary of State to be adequate, and thus the measure would be placed on the ballot at the general election to be held November 5, 1968, were it not for the district court's injunction.

Mr. Robert B. Melland is a state senator from the 29th District. He took office in January 1967 for a four-year term. He is secretary-treasurer of Melland, Inc., located at Jamestown, which is engaged in selling farm equipment, automobiles, trucks, and appliances. He owns more than five per cent of the stock of that corporation. Melland, Inc., does business with the State and its political subdivisions, which business it acquires through competitive bids. Unless § 54--03--21 is held to be unconstitutional, Mr. Melland believes that he will be forced to resign his position in the legislature, because of the company's interest in doing more than $10,000 of business with the State and each of its political subdivisions.

Dr. Warren G. Allen was a member of the House of Representatives, representing the 5th District at the time this action was initiated. He was elected in 1966 for a two-year term which began in January 1967. He resigned in the latter part of August 1967 so that he would not violate § 54--03--21 and incur the penalties specified therein. He was and is chairman of the Division of Education and Psychology at Minot State College. Although he is paid on a State fiscal year basis, his salary in effect exceeds $10,000 per calendar year.

Mr. John Decker is president of several corporations and a partner in several partnerships which are engaged in the oil jobber and real estate businesses in the Ward County area. He is a senator from the 5th District. His four-year term began in January 1967. He does not do business with the State of North Dakota. He testified that as an elector he was concerned with the law because he thought that his right to be represented by a particular man was denied him when Dr. Allen resigned.

Mr. J. R. Bernabucci, Jr., is a member of the House of Representatives from the 29th District, elected for a two-year term beginning in January 1967. He is president of Coca-Cola Bottling Company of Jamestown. He owns more than five per cent of the stock of the corporation. The corporation sells soft drinks to student associations at dormitories at Valley City State College and at the patients' store at the State Hospital at Jamestown. He does not know if these groups are in fact governmental agencies. He desires a determination of the validity of the law.

Mr. Donald A. Peterson is the principal of Memorial Junior High School of Minot. He states that he voted for Dr. Allen, Dr. Allen also being a member of the teaching profession, and now believes that § 54--03--21 has deprived him of his right to be represented by a person of his choice.

Mr. Roger T. Melroe is a citizen and taxpayer of North Dakota. He is secretary-treasurer and executive vice president in charge of industrial sales of the Melroe Company, a corporation engaged in manufacturing farm and light industrial equipment at Gwinner. He owns about twenty per cent of the company stock. His brother-in-law, Mr. Eugene Dahl, who is a member of the House of Representatives elected from the 26th District, owns fifteen per cent of the company stock. Representative Dahl's wife owns five percent of the stock. The corporation has done business with political subdivisions, which up to this time has not exceeded $10,000 per year with any political subdivision but which may in the future exceed that amount.

Mr. Clinton Ottmar is a lawyer at Jamestown. He has a fifty-fifty partnership with Mr. David E. Nething, who is a state senator from the 29th District. Mr. Ottmar is State's Attorney of Stutsman County, and Senator Nething is Assistant State's Attorney. Mr. Ottmar is also a special assistant to the Attorney General, assigned to advise the State Hospital authorities, for which he receives a salary of $500 per month. His agreement provides that he will receive additional compensation for court and appellate work, pursuant to the fee schedule published by the State Bar Association of North Dakota. The consideration that the partnership receives from the State in a calendar year could therefore exceed $10,000.

The statute complained of reads:

54--03--21. Conflict of...