State v. Odegaard

• Decision Date: 25 February 1969
• Docket Number: Cr. 379
• Citation: 165 N.W.2d 677
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Harold J. ODEGAARD, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 677

165 N.W.2d 677

STATE of North Dakota, Plaintiff and Respondent, v. Harold J. ODEGAARD, Defendant and Appellant.

Cr. 379.

Supreme Court of North Dakota.

Feb. 25, 1969.

Syllabus by the Court

1. The test of legitimacy of the exercise of the police power of the state is the existence of a real and substantial relationship between the exercise of that power in a particular manner in a given case and the public health, safety, morals, or general welfare.

2. We find the existence of a real and substantial relationship between the exercise of the police powers contained in N.D.C.C. § 39--21--48 and the public health, safety, and welfare. It follows that the statute in no way violates any of the provisions of our state and federal constitutions.

3. For reasons stated in the opinion it is held that § 1 of ch. 322 of the 1967 session laws (N.D.C.C. § 39--21--48) sets forth a crime, the penalty for which is governed by N.D.C.C. §§ 12--17--27 and 12--06--14, and that accordingly this Court had jurisdiction over a case in which the criminal information was based thereon.

Lanier & Knox, Fargo, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and Eugene Kruger, State's Atty. for Cass ERICKSTAD, Judge.

County, and Russell D. Maring, Asst. State's Atty. for Cass County, Fargo, for respondent.

In this appeal we are asked to determine the constitutionality of a statute which, with certain exceptions, requires the operator of or a passenger on a motorcycle to wear a crash helmet.

By criminal information dated October 17, 1967, Mr. Harold J. Odegaard was charged with the offense of failing to wear a crash helmet while riding a motorcycle. Although we have only an abbreviated transcript of the trial court proceedings, it appears from that transcript and from Mr. Odegaard's brief that when the case came on for trial before the Cass County Court with Increased Jurisdiction, Mr. Odegaard stipulated that the facts were as set out in the criminal information; that he moved that the information be dismissed upon the grounds that the statute upon which it was based was unconstitutional; that this motion was denied by the trial court; that thereafter the trial court found Mr. Odegaard guilty of the offense charged in the information; that Mr. Odegaard before the imposition of sentence made a motion in arrest of judgment, again asserting the unconstitutionality of the statute; that this motion was also denied by the trial court; and that following the imposition of sentence, Mr. Odegaard appealed to this court.

In his notice of appeal he asserts that he appeals from the order denying his motion for dismissal, the judgment of conviction, and the order denying his motion in arrest of judgment. As all of the specifications of error are based upon his contention that the statute under which he was prosecuted is unconstitutional, that is the issue we must determine on this appeal.

The statute in controversy reads:

39--21--48. Crash helmets required for operators of and passengers on motorcycles.--Every operator of and passenger on a motorcycle, as defined by subsection 32a of section 39--01--01, shall at all times when such motorcycle is in motion be required to wear a crash helmet of a type and meeting the standards approved and established by the motor vehicle registrar, provided, however, such helmets shall not be required to be worn when such motorcycle is driven in a parade or ceremonial conducted or permitted under local ordinances.

North Dakota Century Code.

We may assume that one objective of this statute is the prevention or reduction of injuries to motorcyclists. We also take judicial notice of the fact that head injuries often occur when motorcyclists not protected by crash helmets are involved in accidents and that crash helmets are of some protection against such injuries. Mr. Odegaard in effect asserts that for this reason the statute is unconstitutional.

His argument is that in spite of what he denominates 'the beneficent motives' of the statute, it must fail because it affects only his welfare and not the public welfare, and thus it deprives him of his personal freedom and his rights guaranteed by the due process clauses of the federal and state constitutions. He specifically enumerates §§ 1 and 13 of Article I of the North Dakota Constitution and the 9th and 14th amendments to the United States Constitution as being violated by this statute.

The pertinent parts of those sections and amendments read:

ARTICLE I

DECLARATION OF RIGHTS

Section 1. All men are by nature equally free and independent and have certain inalienable rights, among which are those enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; and pursuing and obtaining safety and happiness.

Section 13. * * * No person shall be * * * deprived of life, liberty or property without due process of law.

North Dakota Constitution.

(ARTICLE IX)

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

(ARTICLE XIV)

Section 1. * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

United States Constitution.

It is Mr. Odegaard's contention that the issue resolves itself into this question: 'Is it constitutionally permissible for the state to abridge the liberty of an individual by compelling him, contrary to his desires, to adhere to a course of conduct ostensibly calculated to protect him from possible harm when such conduct has no relationship to the health, safety and welfare of other persons or the public at large?'

On first impression it may appear that whether a person wears a crash helmet or not affects only that person's welfare, but on careful consideration it becomes obvious that this is not true.

Before we discuss that issue, however, we point out that even if it were true, we do not concede that the statute would be unconstitutional, for we are not convinced that the legislature may not take reasonable measures to prevent persons from becoming public charges, which often is the result of the costs of long hospitalization in brain injury cases.

The Supreme Court of Rhode Island recently said:

(I)t is our unqualified judgment that the purpose sought to be achieved by requiring cyclists to wear protective headgear clearly qualified as a proper subject for legislation.

The defendant's contention to the contrary presupposes that protection for the motorcycle operator was the sole motivation for the general assembly's action. Even if this were so, we are not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges. * * *

State ex rel. Colvin v. Lombardi, 241 A.2d 625, 627 (R.I.1968).

Considering the relationship of the statute requiring the wearing of crash helmets to highway safety and the exercise of valid police power, the Rhode Island court said:

(T)he requirement of protective headgear for the exposed operator bears a reasonable relationship to highway safety generally. It does not tax the intellect to comprehend that loose stones on the highway kicked up by passing vehicles, or fallen objects such as windblown tree branches, against which the operator of a closed vehicle has some protection, could so affect the operator of a motorcycle as to cause him momentarily to lose control and thus become a menace to other vehicles on the highway.

State ex rel. Colvin v. Lombardi, Supra, 627.

As recently as June 1968 the Supreme Judicial Court of Massachusetts upheld a statute similar to ours. We quote a part of its opinion:

It lies within the power of the Legislature to adopt reasonable measures for the promotion of safety upon public ways in the interests of motorcyclists and others who may use them. (citation omitted) The act of the Legislature bears a real and substantial relation to the public health and general welfare and is thus a valid exercise of the police power. (citation omitted) As contended by the Commonwealth, '(t)he legislation is reasonable, applies to all equally, and is directly related to highway safety.' * * *

Commonwealth v. Howie, 238 N.W.2d 373, 374 (Mass.1968).

Mr. Odegaard has referred us to two intermediate appellate court decisions construing the constitutionality of crash helmet laws.

The first is American Motorcycle Ass'n v. Davids, 11 Mich.App. 351, 158 N.W.2d 72, decided by the Court of Appeals of Michigan. That court, applying the maxim stated by John Stuart Mill that 'the individual is not accountable to society for his actions, insofar as these concern the interests of no person but himself,' held the Michigan statute unconstitutional.

The Massachusetts court in Howie disposed of the Michigan decision as follows:

A recent Michigan decision to the contrary is not persuasive. On this general subject we find ourselves in agreement with State ex rel. Colvin v. Lombardi, R.I., 241 A.2d 625, decided May 8, 1968.

Commonwealth v. Howie, Supra, 374.

In reaching its conclusion the Michigan court applied the following test:

'The test of legitimacy of the exercise of the police power is 'the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and the public health, safety, morals, or the general welfare."

American Motorcycle Ass'n v. Davids, 11 Mich.App. 351, 158 N.W.2d 72, 76 (1968), quoting Grocers Dairy Co. v. McIntyre, 377 Mich. 71, 138 N.W.2d 767, 770 (1966), quoting Roman Catholic Archbishop of Detroit v. Village of Orchard Lake, 333 Mich. 389, 53 N.W.2d 308 (1952).

See State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 920--921 (1943), for statement of a...