State ex rel. Kaufman v. Davis

• Decision Date: 11 February 1930
• Docket Number: No. 5707.,5707.
• Citation: 59 N.D. 191,229 N.W. 105
• Parties: STATE ex rel. KAUFMAN v. DAVIS et al., State Board of Administration.
• Court: North Dakota Supreme Court

59 N.D. 191

229 N.W. 105

STATE ex rel.KAUFMAN

v.DAVIS et al., State Board of Administration.

No. 5707.

Supreme Court of North Dakota.

Feb. 11, 1930.

Syllabus by the Court.

Chapter 102, Laws of North Dakota for 1929, authorizing the organization of nonprofit sharing institutional holding associations to erect, operate, equip, and maintain dormitories upon or in the vicinity of the campus of state educational institutions, defining the powers of such associations, and defining and limiting the powers and duties of the board of administration in relation thereto, does not delegate legislative power to the board of administration, in contravention of section 25 of the state Constitution.

Said chapter 102 does not authorize the transfer or leasing of lands granted by the federal government for the support of the State Agricultural College, in violation of sections 159 and 161 of the Constitution of North Dakota.

Said chapter 102, supra, does not interfere with the absolute and exclusive control of the state over the various educational institutions specified in the act; neither does it in any manner or in any degree divert such control from the state, in contravention of section 152 of the Constitution of North Dakota.

Said chapter 102, supra, does not provide for or authorize any donation on the part of the state to, or the loaning or giving of the state's credit in aid of, any individual, association, or corporation, in contravention of section 185 of the state Constitution.

Said chapter 102 does not contravene section 11 of the state Constitution, which provides that all laws of a general nature shall have a uniform operation.

Said chapter 102, supra, does not authorize the board of administration or any other officer of the state to create a debt or obligation on the part of the state of any kind whatsoever.

Courts will not determine constitutional questions abstractly or in a hypothetical case; nor will they anticipate a question of constitutional law in advance of the necessity of deciding it. It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute, that its validity may be called in question by a suitor, and determined by an exercise of the judicial power.

A party who assails the validity of a statute on constitutional grounds must show that he is prejudiced by the alleged unconstitutional provision, and that a decision of the constitutional question is necessary in order to protect him in the enjoyment of rights guaranteed to him by the Constitution.

Appeal from District Court, Burleigh County; Jansonius, Judge.

Action by the State of North Dakota, on the relation of Maurice Kaufman, against J. E. Davis and others, as members of and constituting the Board of Administration of the State of North Dakota. From an order sustaining a demurrer to the complaint, relator appeals. Affirmed.McIntyre, Burtness & Robbins, of Grand Forks, for appellant.

James Morris, Atty. Gen., and Harold D. Shaft, Asst. Atty. Gen., for respondents.

CHRISTIANSON, J.

This is an action to enjoin the members of the board of administration of the state of North Dakota from granting a permit to, and entering into any arrangement with, the Agricultural College Dormitory Association, of Fargo, N. D., for the erection of a dormitory on the campus of the Agricultural College of this state, and from entering into any contract or arrangementwith said dormitory association with regard to the construction, maintenance, or leasing of such dormitory. The complaint alleges that the relator is a citizen and a taxpayer of the state of North Dakota, and brings this action in behalf of himself and all other persons similarly situated. It is alleged that the Agricultural College Dormitory Association, of Fargo, N. D., has been incorporated under the provisions of chapter 102 of the Laws of North Dakota for 1929; that said dormitory association was organized for the purpose of erecting a dormitory at the Agricultural College, at Fargo, N. D., and that said board of administration has approved of the organization of said dormitory association, and intends to and will, unless restrained by the court, forthwith enter into an agreement with said association for the construction of a dormitory under the provisions of chapter 102 of the Laws of 1929; and that said board of administration will further enter into a contract with said association for the renting of said dormitory. It is further alleged that said chapter 102 of the Laws of 1929 is unconstitutional and void for the following reasons:

(1) That it delegates legislative power to the state board of administration, in contravention of section 25 of the state Constitution.

(2) That the authority given therein to the state board of administration “to lease” a part of the campus of the Agricultural College (and certain other educational institutions of the state) to an institutional holding association for a period not exceeding 50 years contravenes sections 159 and 161 of the state Constitution.

(3) That the provisions thereof which purport to authorize the conveyance of a portion of the campus and the assignment of the rentals of a dormitory constructed thereon to an institutional holding association contravene sections 152 and 159 of the state Constitution.

(4) That the act authorizes the board of administration to make a donation of state property, or to loan or give the credit of the state to the institutional holding association, in contravention of section 185 of the Constitution.

(5) That the act violates section 11 of the state Constitution, which provides that all laws of a general nature shall have uniform operation.

(6) That the act authorizes the board of administration to create an obligation of the state in excess of the debt limit of the state, as prescribed in section 182 of the state Constitution.

(7) That the provisions of the act which purport to exempt from taxation any dormitory that may be erected and any equipment installed therein by the holding association, and all bonds and other evidences of indebtedness issued by such association, contravenes section 20 of the Constitution (which provides that no citizen or class of citizens shall be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens), subdivision 29 of section 69 of the Constitution (which provides that the Legislative Assembly shall not pass any local or special laws exempting property from taxation), and section 176 of the Constitution (which provides that taxes shall be uniform upon the same class of property, including franchises within the territorial limits of the authority levying the tax, but that the Legislature may by law exempt any or all classes of personal property from taxation, and that within the meaning of this section fixtures, buildings, or improvements of any character upon land shall be deemed personal property, and that the property of the United States and of the state, county, and municipal corporations, and property used exclusively for school, religious, charitable, or other public purposes shall be exempt from taxation).

There is no allegation and no claim that the board of administration is acting, or is about to act, contrary to the provisions of chapter 102, supra. On the contrary, the basis of the action here is that such board is proceeding to act, and, unless restrained, will act, strictly in conformity with the provisions of that statute, and the claim is that by so acting it will infringe upon certain rights guaranteed to the plaintiff, and others of his class, by the Constitution of this state.

The defendants interposed a general demurrer to the complaint. The demurrer was sustained, and the plaintiff has appealed.

The sole questions argued on this appeal relate to the validity of chapter 102, Laws 1929, which reads as follows:

“Section 1. Non-profit sharing corporations to be known as institutional holding associations may be formed in the manner, for the purposes and with the powers, obligations and limitations prescribed by chapter 12 of the Civil Code of the Compiled Laws of 1913, except as herein otherwise provided.

Sec. 2. Such association shall have power (1) to erect, equip, operate, manage, lease or sell, as herein provided, dormitories and their necessary equipment and appurtenances, to be located either upon the campus of the State University, the Agricultural College, any of the normal schools or other state educational institutions, or upon sites in the vicinity of such campus, purchased or otherwise acquired by such association, or as an addition to an existing dormitory at any such educational institution, and to be at all times used and operated solely for educational purposes in connection with any of such educationalinstitutions; (2) to borrow money or contract debts for any or all of the aforesaid purposes and to issue bonds or other evidences of indebtedness therefor; (3) to secure the payment thereof by mortgaging and pledging any or all of its property, real or personal, including income.

Such association shall be subject to the following limitations and restrictions:

(1) Such dormitories, their equipment and appurtenances, shall only be erected and installed according to plans and specifications therefor first approved by the state board of administration and at a cost for site, building and equipment to be fixed by it within the maximum limit hereinafter provided.

(2) Such dormitories, their equipment and appurtenances shall at all times be owned, managed, operated and conducted by such association, its successors or assigns, solely for the educational purpose herein provided in connection with one of such educational institutions and under the control and supervision of said board of administration and under and according to such rules and regulations, including rental charges,...