State v. Nelson Cnty.

• Decision Date: 21 April 1890
• Citation: 45 N.W. 33,1 N.D. 88
• Parties: State v. Nelson County.
• Court: North Dakota Supreme Court

1 N.D. 88

45 N.W. 33

State

v.Nelson County.

Supreme Court of North Dakota.

April 21, 1890.

Syllabus by the Court.

1. An act approved February 14, 1890, entitled “An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein,” examined, and held to be valid, and not an abuse of legislative powers, in that it authorizes the issue of bonds and taxation for a public purpose. Held, further, that the act is not an infringement of section 185 of the state constitution, in this: that it is a measure intended for the “necessary support of the poor.”

2. In the exercise of its original jurisdiction, under section 87 of the state constitution, the supreme court, exercising its discretion, will issue the writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction only when applied for as prerogative writs; and where the question presented is publici juris, and one affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. To invoke the original jurisdiction of this court, the interest of the state must be primary and proximate, and not secondary and remote. This court will judge for itself whether the wrong complained of is one which requires the interposition of this court to protect the prerogatives and franchises of the state in its sovereign character. In all cases where the original jurisdiction of this court is invoked, except in habeas corpus cases, the attorney general shall proceed only on leave, based upon a prima facie showing that the case is one of which it is proper for this court to take cognizance. In ordinary cases, this court will not exercise its original jurisdiction to restrain local taxation for any reason. The proper jurisdiction for that purpose is lodged in the district courts. Held, this being an application made by the attorney general in behalf of the state to enjoin the issue of bonds upon the alleged ground that the statute authorizing the bonds is unconstitutional, that the question is one of local concern, and affects only the county of Nelson and its tax-payers, and hence the case does not fall within the limited class of cases in which this court will exercise original jurisdiction. Held, that the writ of injunction is denied upon the ground that the statute in question is a valid law, and also upon the ground that the question presented is one of merely local concern, and hence is not a proper case to call for the issuing of a writ out of this court.

George F. Goodwin, Atty. Gen., and Burke Corbett, for the motion. M. N. Johnson, State Atty., and F. R. Fulton, opposed.

WALLIN, J.

Upon the return of an order to show cause, application is made to this court for leave to file an information as a foundation for issuing a writ of injunction out of this court prohibiting the county of Nelson and its officials from issuing seed-grain bonds, under an act of the state legislature approved February 14, 1890, and entitled “An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein.” The information is based upon the complaint of one John Birkholz, which alleges-“ First. That the above-named complainant, John Birkholz, is a tax-payer of the county of Nelson, the respondent above named. Second. That said respondent is a political or public corporation, duly organized under existing laws. Third. That J. W. Forbes is the duly elected and qualified chairman of the board of county commissioners, and N. F. Webb is the duly-elected county auditor of Nelson county, and as such officers are respectively discharging the duties thereof. Fourth. That the above-named respondent, on the 26th day of March, 1890, acting through its board of county commissioners and the county auditor of said county, pursuant to a petition signed by 100 freeholders resident in said county, adopted and passed a resolution at a meeting of said board, and thereby resolved to issue the bonds of the said county in the sum of twenty thousand dollars, ($20,000,) payable in ten (10) years, and bearing interest at the rate of seven (7) per cent. per annum, payable semi-annually, claiming their right to so do under an act of the legislative assembly entitled ‘An act authorizing counties to issue bonds to procure seed-grain for needy farmers resident therein,’ approved February 14, 1890, and acts amendatory thereto; that in pursuance to said resolution said respondent, acting through its auditor and the chairman of its board of county commissioners, have taken such steps as are requisite and necessary in the premises to and are about to issue bonds for said amount, in pursuance of said resolution, claiming their right to do so under the act aforesaid. Fifth. That if said bonds are issued they will become the obligation of the county. In order to meet the payment of the interest thereon, and the payment of the principal of the same, it will be necessary to levy taxes from year to year against the tax-paying people of said county, and the proceeds of said bonds, when issued and sold by the said county, will be diverted to and used for the purpose of buying said grain, to be distributed to private individuals, indigent and poor farmers, resident in said county. Sixth. That the act of the legislative assembly aforesaid, under which said respondent claims its right to issue said bonds, is in contravention of section 185 of the constitution of the state of North Dakota, which said section reads as follows: ‘Sec. 185. Neither the state, nor any county, city, township, town, school-district, or any other political subdivision, shall loan or give its credit, or make donations to or in aid of any individual, association, or corporation, except for necessary support of the poor, nor subscribe to or become the owner of the capital stock of any association or corporation, nor shall the state engage in work of internal improvement, unless authorized by a two-thirds vote of the people.’ Wherefore your complainants pray your honorable court that an order in the nature of a rule to show cause be issued to the said respondent, its officers, agents, and servants, to be and appear before your honors at Fargo, in the county of Cass and state of North Dakota, at the opening of court thereof on Wednesday the 2d day of April, A. D. 1890, and then and there show cause, if any reason it has, why an injunction should not be issued restraining respondent from issuing the bonds aforesaid.”

It clearly appears from the complaint that the county of Nelson has, under the provisions of the seed-grain act in question, taken all of the requisite preliminary steps, and is about to issue the bonds of the county, and sell the same; and will apply the proceeds of such sale to the purchase of seed-grain for such farmers of that county as come within the terms of the seed-grain law, and who make application for the seed-grain under oath, and in manner and form as prescribed by the law. It is conceded that all action taken by the defendants is warranted by the express terms of the law; nor is it pretended that the bonds, if issued, will create a county indebtedness exceeding in amount the limit presented by the constitution of the state. Under such circumstances, the writ of injunction will be refused, as a matter of course, unless the statute under which the bonds are intended to be issued is itself unconstitutional or void for some reason. The question presented must turn upon the validity of the seed-grain statute.

The statute has 20 sections, but it will suffice to give the substance of such of its provisions as bear upon its validity as a law. Section 1 provides as follows: “In any county of the state where the crops for any preceding year have been a total or partial failure by reason of drought, hail, or other cause, it shall be lawful for the board of county commissioners of such county to issue the bonds of the county under and pursuant to the provisions of this act, and, with the proceeds derived from the sale thereof, to purchase seed-grain for the inhabitants thereof who are in need of seed-grain, and who are unable to procure the same, whenever said board shall be petitioned in writing so to do by not less than 100 freeholders resident in the county; and said board, at a meeting called as hereinafter provided, to consider said petition, shall by a majority vote determine that the prayer of the petitioners shall be granted: provided, that all such petitions shall be filed with the county auditor or county clerk on or before the 28th day of February; and thereupon it shall be the duty of said officer to forth with call a meeting of the board of county commissioners of his county to consider said petition: and provided, further, that the total amount of bonds issued by any county under the provisions of this act shall not, with the then existing indebtedness of the county, exceed the limit of indebtedness fixed by the constitution in such case.” Section 4 provides: “The proceeds arising from the sale of said bonds shall be paid by the purchaser thereof to the county treasurer of the county, or to his authorized agent at the time of the delivery thereof, and such proceeds shall be paid out only on the order of the board of county commissioners.” Section 6 provides that, “for the purpose of securing prompt payment of the principal and interest of said bonds, there shall be levied by the board of county commissioners, at the time and in the manner that other taxes are levied, such sums as shall be sufficient to pay such interest; and in addition thereto a sinking fund tax shall be annually levied sufficient to pay and retire said bonds at their maturity, and it shall be the duty of the county treasurer to pay promptly the interest upon said bonds as the same shall fall due. No tax or fund provided for the payment of such bonds, either principal or interest, shall at any time be used for any other purpose.” Section 7 is...