State ex rel. Linde v. Taylor

• Decision Date: 05 February 1916
• Citation: 33 N.D. 76,156 N.W. 561
• Parties: STATE ex rel. LINDE, Atty. Gen., et al. v. TAYLOR, State Commissioner of Insurance, et al.
• Court: North Dakota Supreme Court

33 N.D. 76

156 N.W. 561

STATE ex rel.

LINDE, Atty. Gen., et al.

v.TAYLOR, State Commissioner of Insurance, et al.

Supreme Court of North Dakota.

Feb. 5, 1916.

Syllabus by the Court.

The prerogative jurisdiction of the Supreme Court may be exercised only in cases wherein the questions involved are publici juris, and the sovereignty of the state, or its franchises or prerogatives, or the liberties of its people, are affected, and this jurisdiction cannot be exercised to vindicate or protect mere private rights, regardless of their importance.

In an original proceeding in the Supreme Court the state is the actual plaintiff, and the relator a mere incident.

The only test of the validity of an act regularly passed by a state Legislature is whether it violates any of the express or implied restrictions of the state or federal Constitutions.

The wisdom, necessity, or expediency of legislation are matters for legislative, and not judicial, consideration.

Chapter 62 of the Laws of 1915, establishing a state bonding fund for the purpose of furnishing official bonds for county, city, village, school district, and township officers, is not unconstitutional, as conferring judicial powers on the state examiner and commissioner of insurance.

Courts are not at liberty to declare a law void as in violation of public policy. Such policy is determined by the Legislature, and the only limits upon the legislative power in such determination are those fixed in the state and federal Constitutions.

Chapter 62, Laws 1915, is not invalid on account of delegating legislative power to the commissioner of insurance and state auditing board.

The object of all statutory interpretation and construction is to ascertain and give effect to the intention of the Legislature.

It is presumed that the Legislature intended to enact a valid law, and therefore, when a statute is susceptible of two constructions, one of which will render it valid, and another which will render it unconstitutional and void, the former construction will be adopted.

All constitutional inhibitions against the taking of private property without due process of law and all constitutional guaranties of equal rights and privileges are for the benefit of those persons only whose rights are affected, and cannot be taken advantage of by any other persons.

In an original proceeding in the Supreme Court, wherein a law is assailed as being unconstitutional, the court will not anticipate conditions, which may never arise, or determine questions relating to the validity of minor provisions as to detail, but will consider only those questions which relate to the validity of the whole act.

Chapter 62, Laws 1915, is not violative of section 11 of the state Constitution, which requires that all laws of a general nature shall have a uniform operation.

Said chapter 62 does not contravene section 186 of the Constitution, which provides that no money shall be paid out of the state treasury except upon an appropriation by law, and on warrant drawn by the proper officers.

Said chapter 62 does not violate any express or implied constitutional guarantee of the right of local self-government.

Said chapter 62 does not contravene sections 175, 176, or 179 of the state Constitution, relating to taxation and the expenditure of moneys raised by taxation.

Said chapter 62 does not require taxes to be levied and collected for other than public purposes or authorize the taking of private property for private use without compensation.

The establishment and operation of a fund for the bonding of municipal officers and the collection of premiums from the various municipalities whose officers are bonded for the purpose of creating a fund to secure the payment of losses which may result by reason of the nonfeasance, misfeasance, or defalcation of such public officers is a valid exercise of the police power of the state.

Additional Syllabus by Editorial Staff.

Police power is a power inherent in every sovereignty to govern men and things, under which the Legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe regulations to promote the public health, morals, and safety and add to the general public convenience, prosperity, and welfare (citing Words and Phrases, Second Series, Police Power).

Original proceedings by the State, on the relation of Henry J. Linde, Attorney General, and B. V. Moore, for the issuance of a writ prohibiting and enjoining W. C. Taylor, Commissioner of Insurance, and others, from establishing and operating a state bonding fund, as required by Laws 1915, c. 62. Writ denied.Lawrence & Murphy, of Fargo, for plaintiffs. Henry J. Linde, Atty. Gen., Francis J. Murphy and H. R. Bitzing, Asst. Attys. Gen., for defendants.

CHRISTIANSON, J.

This is an original proceeding in this court against the commissioner of insurance, state treasurer, and state examiner to prevent them from putting into operation chapter 62 of the Session Laws of 1915, on the ground that this act is unconstitutional. This act establishes a state bonding fund for the purpose of bonding such county, city, village, school district, and township officers as are or may hereafter be required by law to furnish official bonds, provides the form of bond, the amount of premiums to be paid, and fixes the maximum amount of any bond to be written at $50,000 and prescribes certain duties to be performed by the commissioner of insurance, state treasurer, and state examiner in the organization and operation of such state bonding fund.

The relator is a qualified elector, freeholder and taxpayer in the city of Fargo, Cass county, in this state, and a stockholder in the Dakota Trust Company, a corporation organized under the laws of this state, and since December, 1908, engaged in the business of issuing surety and indemnity bonds (among others) to state, county, city, and school district officers in this state. The relator asserts that the act in question is unconstitutional for the following ten reasons:

“I. The act contains an unwarranted delegation of judicial power to the state examiner and to the commissioner of insurance.

II. If the act does not contain a specific and unwarranted delegation of judicial power as stated, it is then void as a matter of public policy, in that no provision is made for the payment of losses except by litigation and the use of the courts of the state in every instance before money can be withdrawn from the state treasury.

III. The act contains an unwarranted delegation of legislative power to the commissioner of insurance and to the state auditing board in the determination of the amount of public moneys to be used for particular purposes.

IV. If the act does not contain a specific delegation of unwarranted legislative power as referred to in the preceding proposition, then the act is wholly ineffective, inoperative, and impossible of performance, because of lack of means and funds to conduct the same without devoting thereto other public moneys.

V. The act deprives citizens of the state of the constitutional right of due process of law in requiring the appointment of an attorney in fact upon whom service of judicial process may be made.

VI. The act contains wrongful and unlawful discriminations and arbitrary classifications.

VII. The act is void, in that it provides for a withdrawal of moneys from the state treasury without appropriation, presentation of or allowance of a claim filed with the state auditing board.

VIII. The act constitutes a legislative interference with local and municipal affairs.

IX. The act violates various provisions of the state Constitution with reference to taxation and the expenditure of moneys raised by taxation.

X. This legislation as a whole violates the fundamental law in that it engages the sovereign state in a private business in competition with the citizens of the state.”

Before entering into a discussion of the questions raised by the relator, it is proper to consider the scope and purpose of the litigation, and the rules which must be applied in its determination.

[1] 1. The relator has invoked the original jurisdiction of this court. It is well settled that this jurisdiction will not be exercised to vindicate private or local rights regardless of their importance, but it is reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people.

“The jurisdiction,” said Morgan, C. J. (State v. Fabrick, 17 N. D. 532, 536, 117 N. W. 860, 861), “is not to be exercised unless the interests of the state are directly affected. Merely private rights are not enough on which to base an application for the issuance of original writs by this court. The rights of the public must appear to be directly affected. The matters to be litigated must not only be publici juris, but the sovereignty of the state, or its franchises or prerogatives, or the liberties of its people, must be affected. Before the court will, in the exercise of its original jurisdiction, issue prerogative writs, there must be presented matters of such strictly public concern as involve the sovereign rights of the state, or its franchises or privileges. The often-quoted statement of the rule as to the original jurisdiction of the Supreme Court to issue writs of a prerogative character, as given in Attorney General v. City of Eau Claire, 37 Wis. 400, is well expressed and clear: ‘To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote, peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives, raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character.’ This statement of the rule has been approved in...