State v. Knoefler

• Decision Date: 24 May 1979
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Harold R. KNOEFLER, Defendant and Appellant. o. 671.
• Court: North Dakota Supreme Court

Page 658

279 N.W.2d 658

STATE of North Dakota, Plaintiff and Appellee, v. Harold R. KNOEFLER, Defendant and Appellant.

Cr. No. 671.

Supreme Court of North Dakota.

May 24, 1979.

Rehearing Denied June 8, 1979.

William S. Murray, Bismarck, for defendant and appellant.

Sherrilynn Sperling Smith, Sp. Asst. Atty. Gen., Bismarck, for plaintiff and appellee.

SAND, Justice.

Harold R. Knoefler, defendant, in his appeal from a district court judgment of conviction, challenged the constitutionality of § 4-12-03.1, North Dakota Century Code, and the regulations promulgated thereunder. The regulations were not separately challenged and will rest or fall with the statute.

Knoefler was charged, tried, and convicted in Bottineau County Court of violating §§ 4-12-03.1, ¹ 4-12-21, and 4-12-22 NDCC. Knoefler appealed the county court conviction to the district court of Bottineau County and demanded a trial de novo. Pursuant to a stipulation, the District Court of Bottineau County ordered a change of venue to the district court of the Fourth Judicial District, County of Burleigh. The Burleigh County District Court found Knoefler guilty of violating §§ 4-12-03.1, 4-12-21, and 4-12-22, NDCC, and fined him $100 for each violation, for a total fine of $300. The defendant challenged the constitutionality of § 4-12-03.1, NDCC, in both the county court and the district court. Knoefler appealed the judgment of conviction to this court.

No issue was raised as to the sufficiency of the evidence.

Defendant, in his brief, made reference to the files and records previously submitted to this court on a prior appeal in a companion case ² wherein he contended, as he does here, that § 4-12-03.1, NDCC, and its regulations, which prohibit a commercial beekeeper from establishing an apiary within two miles of another commercial operator, violate §§ 20, 69 and 11 of the North Dakota Constitution as well as the fourteenth amendment to the United States Constitution. Knoefler contended that § 4-12-03.1 creates an unconstitutional classification between new and established beekeepers for the sole purpose of inhibiting competition.

As pertinent to this issue, § 20 of the North Dakota Constitution, in part, provides as follows:

" . . . nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens."

The record indicates Knoefler is not a resident or citizen of North Dakota but rather resides in Nebraska, or possibly California. In Benson v. Schneider, 68 N.W.2d 665 (N.D.1955), this court said that a person who is not a citizen of this state may not invoke the provisions of § 20, Article I, of the North Dakota Constitution. Knoefler has not illustrated in any manner whatsoever, nor has he established facts giving rise to a presumption, that he is a resident or citizen of this state; consequently he is not in a position to invoke the provisions of § 20 of the North Dakota Constitution.

Even if Knoefler had established standing to challenge the constitutionality under § 20, N.D.Const., this court, in Dunn v. North Dakota Workmen's Compensation Bureau, 191 N.W.2d 181 (N.D.1971), took cognizance that § 20 does not prohibit appropriate legislative classification where proper facts justify such a classification and the act applies uniformly to all within a class under similar circumstances. The court had under consideration a statutory provision which exempted partners from the Workmen's Compensation Act but at the same time provided executive officers who performed duties similar to those of an employee were not exempt. The court concluded this was not an unconstitutional or invalid classification.

Section 69 of the North Dakota Constitution, as pertinent to the issue here, provides "The legislative assembly shall not pass local or special laws in any of the following enumerated cases" and then sets out the 35 subjects covered.

In State v. Lawler, 53 N.D. 278, 205 N.W. 880 (1925), and in State v. First State Bank of Jud, 52 N.D. 231, 202 N.W. 391 (1924), this court defined a special law as one relating only to particular persons or things of a class, as distinguished from a general law which applies to all things or persons of a class, and a local law as one which applies to a specific locality or spot, as distinguished from a law which operates generally throughout the entire state.

Section 4-12-03.1, NDCC, is neither a special nor a local law it is general. It operates equally upon all commercial beekeepers and on all lands within the scope of the statute. It operates alike on all persons and property similarly situated. There is no difference in the law from one locale to another. It operates alike in all cases where the facts are substantially the same and it operates in the same manner with the same effect throughout the entire state. It necessarily follows that it does not violate § 69 of the North Dakota Constitution.

The principles of law applying to § 11, N.D.Const., which states that "All laws of a general nature shall have a uniform operation." are not dissimilar from those principles applying to the fourteenth amendment to the United States Constitution, and therefore we will consider them together.

In Herman v. Magnuson, 277 N.W.2d 445 (N.D.1979), we quoted approvingly from Arneson v. Olson, 270 N.W.2d 125 (N.D.1978), wherein we set up three standards of scrutiny, and stated:

"In Johnson v. Hassett, supra (217 N.W.2d 771 (N.D.1974)), we referred to the three standards of scrutiny of equal-protection questions for a judicial adjudication of constitutionality which appeared to have evolved in the Federal courts. One is the traditional reasonable or rational-basis standard under which a statute will be upheld if its classifications are not patently arbitrary and bear a reasonable relationship to a legitimate government interest. However, if the case involves an 'inherently suspect classification' or a 'fundamental interest,' it is 'subjected to strict judicial scrutiny.' A third, less clearly defined, category requires a 'close correspondence between statutory classification and legislative goals.' In Johnson v. Hassett, supra, we said that this latter test closely approximates the substantive due-process test historically used by this and other State courts." 270 N.W.2d at 132-133.

The difficulty, however, remains in determining which standard applies.

From our research, it appears that neither the United States Supreme Court, ³ nor any Federal or State court has defined what constitutes an inherently suspect classification. Under these circumstances we do not believe it necessary or appropriate to formulate a definition. The United States Supreme Court, however, has treated classifications based upon race, alienage, or national origin as inherently suspect, and a plurality, in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), included sex as being a suspect classification and thus subject to strict judicial scrutiny. See also Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). As to alienage, see Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). As to race, see McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). As to illegitimacy, see Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); but Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), should also be considered.

Based upon the foregoing decisions, we do not believe that § 4-12-03.1, NDCC, "involves an 'inherently suspect classification' or a 'fundamental interest,' " and therefore is not subject to strict judicial scrutiny.

Beekeeping has been recognized by this court as a commercial enterprise or activity. Morel v. Thompson, 225 N.W.2d 584 (N.D.1975). Thus statutes creating classifications within the beekeeping industry, if indeed such classifications are created by § 4-12-03.1, NDCC, are governed by the constitutional concepts that apply to business or commercial classifications.

The United States Supreme Court in Lincoln Federal Union v. Northwestern Iron & Metal Co., 355 U.S. 525, 69 S.Ct. 251, 93 L.Ed. 212, 6 A.L.R.2d 473 (1949), after reviewing Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469 (1934); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908); and Coppage v. State of Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915), said:

"This Court beginning at least as early as 1934, when the Nebbia case was decided, has steadily rejected the due process philosophy enunciated in the Adair-Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that the states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law. (Citations omitted.) Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and the State legislatures are put in a straitjacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare." 355 U.S. at 536-537, 59 S.Ct. at 257.

The foregoing statement was reaffirmed by the United States Supreme Court in North Dakota State Board of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973), and is of significance because in Snyder the United States Supreme Court reversed its earlier holding in Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 73 L.Ed. 204 (1928), which declared unconstitutional a Pennsylvania statute similar to the North Dakota statute, § 43-15-35, relating to pharmacy ownership by registered pharmacists as a prerequisite to being licensed. The United States Supreme...