State ex rel. Amerland v. Hagan

• Decision Date: 28 October 1919
• Citation: 44 N.D. 306,175 N.W. 372
• Parties: STATE ex rel. AMERLAND v. HAGAN, Commissioner of Agriculture and Labor, et al.
• Court: North Dakota Supreme Court

44 N.D. 306

175 N.W. 372

STATE ex rel.AMERLAND

v.HAGAN, Commissioner of Agriculture and Labor, et al.

Supreme Court of North Dakota.

Oct. 25, 1919.

Concurring Opinion of Christianson, C. J., Oct. 28, 1919.

Syllabus by the Court.

In an original proceeding, where the Attorney General has made a motion to strike the return and answer of the Workmen's Compensation Bureau, made and filed by one of the members thereof, upon the ground that such Attorney General is the sole legal adviser and person entitled to appear by law for such bureau, and that, further, such answer and return was filed without his knowledge or consent, it is held that any board or department of the state government have the right to personally appear in their own defense before this court, and that the Attorney General, although he is by statute the legal adviser of the departments of the state government, and entitled to represent them in actions, sustains, nevertheless, in such actions a relation similar to that of attorney and client, and he may not overrule or entirely disregard rights of defense or of personal appearance that such departments may desire to assert.

In 1919 the Legislative Assembly of North Dakota enacted a compulsory Workmen's Compensation Act (Laws 1919, c. 162), to cover employes engaged in hazardous employment, wherein “hazardous employment” is defined to be an employment in any business, trade, or occupation wherein one or more persons are employed, not casually, excepting agricultural, domestic, and railroad employés. Upon the issue raised by the relator, engaged in the real estate and loan business, that this definition by legislative fiat covers his employment, which is nonhazardous and free from danger, it is held that it is within the province of legislative power, in the exercise of the police power, pursuant to public demand, and as a matter of public policy, to classify generally a given employment as possessing elements of risk or hazard, and that such legislative expression will not be deemed arbitrary and unreasonable by the court, unless a specific showing be made as a matter of fact that the employment of such relator is nonhazardous and without risk.

It is within the province of the Legislature, in the proper exercise of its police power, as a matter of public policy, to declare that there is an element of hazard or of danger in employment in the modern business world, and this court, upon construction of its definition in that regard, will not presume that the term “hazardous” must necessarily refer to employments that have heretofore been termed hazardous, by reason of extra features of hazard inherent to the nature of occupation.

The Legislature, within the exercise of its police powers, in enacting a compulsory Compensation Act, may abrogate common-law defenses, and impose liability without fault, substituting new rules of legal procedure in place of the old, so long as its action in that regard is not arbitrary, unjust, or unreasonable.

In the Workmen's Compensation Act of 1919 (Laws 1919, c. 162), it is provided that employers subject to the act shall pay to the compensation fund, in proportion to the annual pay roll expenditures, a rate prescribed by the bureau, pursuant to a classification of employments with respect to the degree of hazards, and that if an employer does not comply with such act he shall be deprived of common-law defenses concerning injuries sustained by his employés, and further that, upon compliance, the employer shall not be liable for injuries sustained by his employés, but that recourse must be had to the workmen's compensation fund. It is further provided in such act that no contract made by the employer with his employé, which serves to deduct or retain any moneys that are paid to comply with this Compensation Act shall be valid. It is held that these provisions in the act are not deemed so arbitrary and unreasonable as a matter of law as to be violative of relator's constitutional rights, either under the due process clause, the equal privileges and immunities clause, or the clause concerning the impairment of the obligation of contracts of either the federal or state Constitution.

It is further held that the Workmen's Compensation Act, which in the title thereof states that the enactment is for the benefit of the employés engaged in hazardous employment, is not subject to the constitutional objection that it embraces more than one subject.

It is further held that the Compensation Act, which grants to the bureau power to classify employment, and prescribe rates, is not unconstitutional upon the ground of an improper delegation of judicial power.

Additional Syllabus by Editorial Staff.

Const. § 87, authorizing Supreme Court to issue writs of injunction, etc., was not intended to vindicate private or local rights, but is a prerogative jurisdiction; and thereunder an employer engaged in real estate and loan business and coming within definition of a hazardous employment contained in Workmen's Compensation Act, effective July 1, 1919 (Laws 1919, c. 162), cannot maintain an original application, as relator, to restrain and prohibit its enforcement by Workmen's Compensation Bureau, on ground of its unconstitutionality, especially where Attorney General has refused to institute such a proceeding. (Per Christianson, C. J.)

Original application by the State, on the relation of Henry Amerland, against John N. Hagan, Commissioner of Agriculture and Labor and ex officio member of the Workmen's Compensation Bureau of the State of North Dakota, L. H. Wehe and S. S. McDonald, Commissioners and members of the Bureau, and Obert Olson, State Treasurer and ex officio member of such Bureau, to enjoin and prohibit the Workmen's Compensation Bureau from in any manner enforcing the Workmen's Compensation Act in the state on the grounds of its unconstitutionality. Petion dismissed.

Robinson, J., dissenting in part.

Lawrence & Murphy, of Fargo, for relator.

William Langer, Atty. Gen., Edw. B. Cox, Asst. Atty. Gen., and L. J. Wehe, of Bismarck, for respondents.

BRONSON, J.

This is an original application to this court to restrain and prohibit the Workmen's Compensation Bureau from applying, or in any manner enforcing, the Workmen's Compensation Act (Laws 1919, c. 162) in this state.

The relator is a private citizen, alleging himself to be a citizen and taxpayer of Cass county, N. D. He is engaged in the real estate and loan business at Fargo, and employs two clerks, whose sole work, as he alleges, consists in keeping books, making records, writing letters, and similar work, without any danger from any hazardous or dangerous work of any kind or nature whatsoever. He invokes the original jurisdiction of this court, claiming that the act by its terms applies to him in his business; that the bureau are about to enforce the powers of this act as to him, and deprive him of his constitutional rights; that multitudes of other citizens are likewise affected; and that the matter is of such public interest that it involves the franchises and prerogatives of the state and the liberties of its people. For the Compensation Bureau, the Attorney General of the state has appeared and filed a motion to dismiss upon the grounds that the petition fails to allege facts sufficient to constitute a cause of action. The bureau itself, through one of its members, an attorney, has filed a return in the nature of a demurrer, which challenges the jurisdiction of this court, the right of the relators to sue, and the sufficiency of the cause of action alleged. Furthermore, it has submitted, as its return, an answer, in the event of the demurrer being overruled, which alleges the legality and constitutionality of the Workmen's Compensation Act, under which such bureau is operating pursuant to the legislative enactment in 1919.

[1] The Attorney General has also filed a motion to strike from the records and files the answer of such bureau, upon the ground that the Attorney General, as such, is the sole legal counsel of such bureau and the only person entitled to appear in its behalf, and that such answer was filed without the consent, knowledge, or concurrence of such Attorney General.

It is indeed unseemly that contentious strife should be made before this court between parties appearing for the respondents. These matters of contention will be noticed only to the extent of stating that the time has not yet arrived in this state when any board or officer of the state does not possess the same right as any individual to defend itself or himself by itself or himself in the courts of this state. Furthermore, although it is perfectly obvious under the statute that the Attorney General is the general and the legal adviser of the various departments and officers of the state government, and entitled to appear and represent them in court, this does not mean that the Attorney General, standing in the position of an attorney to a client, who happens to be an officer of the government, steps into the shoes of such client in wholly directing the defense and the legal steps to be taken in opposition or contrary to the wishes and demands of his client or the officer or department concerned.

It appears from the return filed by the bureau that the relator is the president of the Amerland Company, a corporation which is engaged in real estate, loan, and insurance business in Fargo; that this corporation, through this relator as president, has made application, has paid the rate, and has filed under the terms of the Compensation Act; that it does employ two persons in the corporation offices. The return specifically alleges that the relator, as an individual, has made no application to comply with the Compensation Act, and that the bureau has made no attempt, either by communication or otherwise, to compel compliance. This is not denied by the relator. There are therefore serious questions raised concerning the jurisdiction of ...