Newman v. Hjelle

• Citation: 133 N.W.2d 549
• Decision Date: 04 March 1965
• Docket Number: No. 8201,8201
• Parties: Harold NEWMAN, for himself and other taxpayers of the State of North Dakota similarly situated, Plaintiff and Appellant, v. Walter HJELLE, Highway Commissioner of the State of North Dakota, and R. E. Bradley, Chief Engineer of the State Highway Department of the State of North Dakota, Defendants and Respondents.
• Court: United States State Supreme Court of North Dakota

Page 549

133 N.W.2d 549

Harold NEWMAN, for himself and other taxpayers of the State

of North Dakota similarly situated, Plaintiff and Appellant, v. Walter HJELLE, Highway Commissioner of the State of North

Dakota, and R. E. Bradley, Chief Engineer of the

State Highway Department of the State of

North Dakota, Defendants and

Respondents.

No. 8201.

Supreme Court of North Dakota.

March 4, 1965.

Syllabus by the Court

1. Trial de novo is not available on appeal to the Supreme Court from a judgment dismissing the complaint on the ground it fails to state a claim upon which relief can be granted where no matters outside of the pleadings are presented to or considered by the lower court.

2. Where trial court granted motion to dismiss action under Rule 12(b), N.D.R.Civ.P., for failure of complaint to state a claim upon which relief can be granted and no matters outside the pleadings were presented to or considered by the court, there is no issue of fact before the court upon which it may act as a trier of the facts and, therefore, no findings of fact were necessary in ordering a dismissal.

3. Where the lower court grants defendants' motion to dismiss action for failure of complaint to state a claim upon which relief can be granted, it operates as an adjudication upon the merits unless the court in its order for dismissal specifies otherwise. Rule 41(b), N.D.R.Civ.P. Held in instant case where court has not specified otherwise, the dismissal operates as an adjudication upon the merits and is, therefore, appealable.

4. An order denying a motion to dismiss an action for lack of jurisdiction is not final and, therefore, not appealable but order may be reviewed upon an appeal from the final judgment, if embodied in and made a part of the judgment roll by a statement of the case.

5. Where no matters outside of the pleadings are submitted to or considered by the court on a motion to dismiss for failure of complaint to state a claim upon which relief can be granted, the court will pass only on the sufficiency of the complaint and not on proof to support it.

6. A motion to dismiss the complaint for failure to state a claim upon which relief can be granted admits the material facts alleged in the complaint for the purpose of the motion and challenges the plaintiff's right to relief.

7. The sole object sought in construing a constitutional provision is to ascertain and give effect to the intention and purpose of the framers and of the people who adopted it, and all rules of construction are subservient to and intended to effectuate such objects. Primarily such intention and purpose are to be found in and deduced from the language of the Constitution itself but, if the language is ambiguous or the answer doubtful, them the field of inquiry is widened and the rules applicable to the construction of statutes are to be resorted to, and the court may look to the history of the times and examine the state of being existing when the question was framed and adopted by the people in order to ascertain the prior law, the mischief, and the remedy.

8. In the construction of an amendment to the Constitution of this State, the facts and purposes leading up to its enactment may be considered as an aid in determining the intention of the people in enacting it.

9. Article 56 of the amendments to the Constitution of this State dedicates the revenue from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes, after deduction of cost of administration and collection authorized by legislative appropriation and statutory refunds, to construction, reconstruction, repair and maintenance of public highways, and was intended to prevent the diversion of such revenues to other than public highway purposes. The phrase 'construction, reconstruction, repair and maintenance' is construed to include such areas as are properly within the purposes for which the revenues were frozen, to wit, 'public highway' purposes.

10. Article 56 and Section 186 of Article 12 of the Constitution of this State are construed not to prevent the use of revenues received from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxation, after deduction of cost of administration and collection authorized by appropriation and statutory refunds, for the purpose of acquiring and controlling such advertising rights outside of the right of way of controlled-access facilities as may be determined by the State Highway Commissioner to be in the public interest under Section 24-01-32, NDCC.

Zuger, Zuger & Bucklin, Bismarck, for appellant.

Helgi Johanneson, Atty. Gen., and Vernon R. Pederson, Asst. Atty. Gen., Bismarck, for respondents.

TEIGEN, Judge.

This appeal is from a judgment dismissing plaintiff's complaint. The proceeding was on motion under Rule 12(b), North Dakota Rules of Civil Procedure.

The plaintiff by his complaint seeks to restrain and enjoin the defendants from using revenues from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes for the purchase or acquisition of advertising and sign control rights outside of the access right of way of Interstate Highway No. 94. Plaintiff also prays for a declaratory judgment declaring said revenue cannot be used by the highway commissioner or chief engineer of the highway department to control the advertising rights within highway rights of way nor outside of the highway rights of way.

The complaint alleges that Article 56 of the Constitution declares that revenues from the above-described sources shall be used 'solely for construction, reconstruction, repair and maintenance of public highways.' The complaint further alleges that the legislature has not appropriated moneys to acquire or control advertising rights in this State; that the defendants have used and are using moneys derived from the above-described sources for the purpose of acquiring all rights to control the erection, location or maintenance of signs, or any form of advertising, within 660 feet on both sides of the outer access right-of-way limits of Interstate Highway No. 94; that such is an unlawful and unconstitutional use of such funds and in violation of Article 56 and Section 186 of Article 12 of the Constitution; and that the purchase or acquisition of advertising control rights outside of the right-of-way limits is not a cost of construction, reconstruction, repair or maintenance of a public highway. The complaint also alleges that the defendants intend to persist in their unlawful course of action despite warnings and will continue to do so in the future, unless restrained by the court.

Plaintiff alleges that he owns and operates a motor vehicle and pays gasoline, other motor fuel excise and license taxation, and motor vehicle and license taxes; that he and others similarly situated have an interest in seeing that said taxes are used for the purposes limited by the constitutional provisions aforesaid; and that the acts complained of produce injury to the plaintiff and others similarly situated.

The defendants exercised the option permitted under Rule 12(b), North Dakota Rules of Civil Procedure, before serving a responsive pleading to assert by motion the following defenses: (1) Lack of jurisdiction over the subject matter; (2) Insufficiency of Process; (3) Insufficiency of service of process; and (4) Failure to state a claim upon which relief can be granted. Defendants prayed for a dismissal of the complaint.

No matters outside the pleadings were presented to or considered by the court.

Following a hearing on the motion, the court issued its memorandum and supplementary memorandum opinions, which were followed by findings of fact, conclusions of law and order for judgment, and a judgment dismissing the complaint.

The plaintiff has appealed and has asked trial de novo in this court.

Dismissal of the complaint was ordered on the ground of 'failure [of the complaint] to state a claim upon which relief can be granted.'

Although the issues are not raised on this appeal, we are nevertheless met at the threshold of this appeal with two practice questions: (1) Is a trial de novo available on this appeal; and (2) Was it proper for the lower court to make findings of fact and conclusions of law in this case?

We find that trial de novo is not available in this case. Section 28-27-32, NDCC, provides that on appeal in any action tried by the court, without a jury, whether triable to a jury or not upon specified questions of fact or demand for a retrial of the entire case, the Supreme Court shall try anew the questions of fact specified in the statement of the entire case and finally dispose of the same whenever justice can be done without a new trial. In this case there was no trial. Issue has not been joined. No responsive pleading has been served or filed and no matters outside of the pleading were presented to or considered by the court. Nor is it a summary judgment proceeding under Rule 56 or Rule 12(b), North Dakota Rules of Civil Procedure. The court had before it for consideration the summons, the complaint, the proof of service, and the defendants' motion to dismiss--nothing else. This is not an appeal that may be tried de novo in this court.

The second practice question must also be answered in the negative. Rule 52(a), N.D.R.Civ.P., in part, provides:

'Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).'

Rule 41(b), N.D.R.Civ.P., requires findings of fact only if the court renders judgment on the merits against the plaintiff after sitting as trier of the facts. It is not applicable here.

Our neighboring State of Minnesota in Love v. Anderson, 240 Minn. 312, 61 N.W.2d 419, said:

'Prior to the adoption of the Rules of Civil Procedure courts were not required to make findings in disposing of...