Nord v. Guy
| Decision Date | 23 March 1966 |
| Docket Number | No. 8285,8285 |
| Parties | O. C. NORD, Plaintiff and Appellant, v. William L. GUY, Governor, Arne Dahl, Commissioner of Agriculture and Labor, and Helgi Johanneson, Attorney General, constituting the Industrial Commission of the State of North Dakota; and Martin J. Kruse, John Conrad, Albert Haas, Elvira Jestrab, Mildred Johnson, Fred R. Orth and Henry P. Sullivan, as the State Board of Higher Education of the State of North Dakota, Defendants and Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where an Act purports to grant to the Board of Higher Education the power to declare the policy of the law and fix the legal principles which are to control, it delegates legislative power to the Board in violation of Section 25 of the Constitution of North Dakota, as such grant is a legislative function.
2. Where the legislature authorizes the State Board of Higher Education to provide facilities described as 'buildings used for classroom, library, laboratory, workshop, administration and maintenance purposes, and landscaping, furnishings, and equipment associated therewith' to be used for educational purposes at the various state institutions of higher education, but does not specify the institutions where the facilities are to be constructed, the priority and cost thereof, and delegates all such power to the State Board of Higher Education, it is an unconstitutional delegation of legislative power in violation of Section 25 of the State Constitution.
Shaft, Benson, Shaft & McConn, Grand Forks, for plaintiff and appellant.
Helgi Johanneson, Atty. Gen., and Gerald W. VandeWalle, Asst. Atty. Gen., Bismarck, for defendants and respondents.
This is an appeal from a summary judgment of the District Court for Burleigh County dismissing the complaint of the plaintiff challenging the constitutionality of Chapter 155, Session Laws of 1965, hereinafter designated as the Act. The pertinent part of the Act provides:
§ 1. Declaration and Finding of Public Purpose.) The legislative assembly of the state of North Dakota hereby declares and finds that it is and has been its purpose in preparing and adopting the provisions of this Act to promote the advancement of the citizens of this state through making available more adequate facilities for higher education in the state of North Dakota, thereby promoting the economic welfare of the citizens of the state and the economic progress of the state.
§ 2. State of North Dakota General Obligation Bonds--Higher Education Facilities Series--Bond Purpose.) An issue of general obligation bonds of the state, to be designated as State of North Dakota Bonds, Higher Education Facilities Series, in the amount of ten million dollars, is hereby authorized under the authority of section 182 of the Constitution, for the sole purpose of providing and equipping facilities at the state-supported institutions of higher education. As used in this Act, the term 'facilities' shall mean and include buildings used for classroom, library, laboratory, workshop, administration and maintenance purposes, and landscaping, furnishings, and equipment associated therewith.
§ 3. Preparation of Bonds.) * * *.
§ 4. Sale and Delivery of Bonds--Deposit of Proceeds.) * * *.
§ 5. Bonds Tax Exempt.) * * *.
§ 6. Bonds a General Obligation of the State of North Dakota.) Upon receipt of payment therefor, the industrial commission shall deliver to each purchaser of bonds issued under this Act the bonds purchased by him, and upon delivery of such bonds the full faith and credit and unlimited taxing resources of the state of North Dakota shall stand pledged for the punctual full payment of each and all of such bonds and the interest thereon to the lawful holder and owner thereof as bonds and coupons become due and are presented for payment.
§ 7. Facility Fee--Board to Set Amount.) The board of higher education shall set a facility fee to be charged annually to each student at the time of his registration at an institution under the control of the board. Such fee shall be in an amount to be determined by the board, and the total of all such fees charged shall be in an amount sufficient to pay not less than fifty percent of the interest and principal of such bonds as such principal and interest become due in the following year and to and including July 1 in the year thereafter. All amounts collected under this section shall be deposited in the educational building fund which is hereby created.
§ 8. Transfers from General Fund.) On the first day of each month commencing with the first month after any bonds are issued under authority of this Act and until all such bonds are retired, the state treasurer shall transfer the amount of forty thousand dollars from the state general fund to the educational building fund, except that during the biennium beginning July 1, 1965, and ending June 30, 1967, such transfer shall be in the amount of twenty thousand dollars each month.
§ 9. Appropriation.) There is hereby appropriated from the educational building fund all funds required for the payment of interest and principal of all bonds issued and sold under this Act as such principal and interest become due, and this appropriation and any taxes and other provisions for payment of said bonds and interest shall not be repealed or discontinued until the said bonds and interest shall have been paid.
§ 10. Educational Building Fund.)
All moneys transferred in accordance with sections 7 and 8 of this Act shall be placed in the educational building fund. This fund shall be maintained by the state treasurer and shall be used and disbursed for the following purposes:
1. To provide for the payment and security of the principal and interest due on any bonds issued under the provisions of this Act. For this purpose the treasurer shall transfer from the educational building fund to the sinking fund as provided for in section 11 of this Act, whenever necessary, so much of the moneys in the educational building fund then on hand as may be required, or all thereof if necessary, to produce a balance in the sinking fund equal to the sum of the interest due and to become due within eighteen months plus the principal due and to become due within twenty-four months thereafter on all outstanding series of such bonds.
2. To finance the construction, reconstruction, and betterment of buildings and the provision of equipment therefor at state institutions of higher learning as may be authorized from time to time by the legislative assembly, provided that no disbursement for such purpose shall be made at any time when the balance in the sinking fund is less than specified in subsection 1 of this section.
§ 11. Sinking Fund.) The sinking fund for the payment of bonds issued under this Act, together with interest thereon, shall be established and maintained in the office of the state treasurer who shall be its official custodian and shall at all times maintain adequate books and records thereof. The state treasurer shall make reports of the condition of the sinking fund to the board of higher education on its request. Any taxes levied and all sums appropriated and transferred under the provisions of sections 10, 12, and 13 of this Act for payment of such bonds and interest shall be deposited in the sinking fund and shall be disbursed by the state treasurer solely for the payment of the bonds and interest thereon directly or through a paying agent to be designated by him.
§ 12. Transfer from Bond Proceeds Fund and Tax Levy for Deficiency.) If on December 1 of any year the balance in the sinking fund is less than the sum necessary to pay principal and interest upon such bonds due during the succeeding twelve months, a sum sufficient to pay such amounts shall be transferred from the special fund in the state treasury in which the proceeds of the bonds have been deposited, and if after the transfer the balance in the sinking fund is still less than the sum necessary to pay principal and interest on such bonds due during the succeeding twelve months, the state treasurer shall immediately inform the members of the state board of equalization who shall forthwith meet and proceed to levy a tax upon the aggregate net assessed value of the taxable property within the state in such amount as is required to make up such deficiency.
§ 13. Transfer of Balance.) Upon the retirement of all general obligation bonds issued hereunder and the interest thereon any unexpended balance in the sinking fund created by this Act shall be transferred by the state treasurer to the educational building fund.
§ 14. Certificates of Indebtedness Against Uncollected Taxes.) * * *.
§ 15. Investment of Funds.) * * *.
§ 16. Protection of Purchaser.) * * *.
§ 17. Mortgage--Delivery to Escrow Agent.) At the time of the execution of the bonds authorized by this Act, there shall be executed a mortgage upon stateowned enterprises and industries as authorized by section 182 of the Constitution to secure the payment of bonds and interest thereon, which property now has a value in excess of the requirements of section 182 of the Constitution. Such mortgage shall be executed by the governor and attested to by the secretary of state and shall be deposited with a trustee to be selected by the industrial commission, to be held by such trustee to secure the prompt payment of bonds and interest thereon until all bonds are retired.
§ 18. Limitation of Action.) * * *.
§ 19. Appropriation of Proceeds.) The proceeds of any and all bonds sold pursuant to the provisions of this Act are hereby appropriated to the state board of higher education for use in the construction and equipping of facilities authorized by this Act at state institutions of higher education as determined by the board and in accordance with such schedule of priorities as may be prescribed by such board.
§ 20. Emergency.) * * *.
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