Tang v. Ping, 8872

Citation209 N.W.2d 624
Decision Date13 July 1973
Docket NumberNo. 8872,8872
PartiesWalter TANG, a/k/a Tang Ying Chow, a minor, by Luella Abel, his Guardian Ad Litem, Plaintiff and Appellant, v. Joseph PING, a/k/a Teong Huat Ping, Defendant and Respondent. Civ.
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court

1. A statute that defines adulthood with different ages for males and females, when applied to the Unsatisfied Judgment Fund law, produces an unconstitutional result in that equal protection of the law is denied to males aged eighteen through twenty. § 14--10--01(1), N.D.C.C., as in effect prior to July 1, 1971.

2. Courts will construe statutes so as to harmonize their provisions with the Constitution if it is possible to do so, to the end that they may be sustained.

3. For the reasons stated in the opinion, the application of § 14--10--01(1), N.D.C.C., as in effect prior to July 1, 1971, to the Unsatisfied Judgment Fund law produces an unconstitutional effect and said statute will not be utilized as an aid in determining residency with reference to the Unsatisfied Judgment Fund law.

Degnan, McElroy, Lamb, Camrud & Maddock, Grand Forks, for plaintiff and appellant.

E. J. Rose and John M. Olson, Sp. Asst. Attys. Gen., Unsatisfied Judgment Fund, Bismarck, for defendant and respondent.

PAULSON, Judge.

On September 14, 1969, the appellant herein, Walter Tang (hereinafter Tang), was seriously injured in an automobile accident. Tang recovered a judgment in the sum of $9,439.00 in the district court of Grand Forks County on September 28, 1970, against Joseph Ping, respondent herein.

After execution on Tang's judgment was returned wholly unsatisfied, he filed his application for an order directing payment of the judgment from the Unsatisfied Judgment Fund. The district court denied Tang's application on the ground that Tang did not fulfill the residency requirement for payment from the Fund, as required by § 39--17--03 of the North Dakota Century Code. The district court also held that Tang was not denied equal protection of the law despite the fact that a female of the same age as Tang (20) would be considered an adult under § 14--10--01, N.D.C.C., as it existed prior to July 1, 1971, and, therefore, such female would be able to establish a residence different from the residence of her parents, under § 54--01--26, N.D.C.C. Tang has appealed from the order of the district court dated June 29, 1972, denying Tang's application for payment from the Fund.

Tang, in his appeal, asserts that the district court erred in applying subsections 4 and 6 of § 54--01--26, N.D.C.C., in determining residency under § 39--17--03, N.D.C.C., of the Unsatisfied Judgment Fund law. Tang claims that subsections 4 and 6 of § 54--01--26 need not and should not be applied in determining residency under the Unsatisfied Judgment Fund law and that if such subsections of § 54--01--26 are so applied, they are unconstitutional as denying equal protection of the law, since a female the same age as Tang, as an adult, would have been able to apply to and possibly recover from the Fund.

In Tschider v. Burtts, 149 N.W.2d 710, 712 (N.D.1967), this court stated:

'The purpose of the Unsatisfied Judgment Fund is to protect, within limits, persons who are injured by unknown or financially irresponsible motorists.'

Section 1--02--01, N.D.C.C., provides, in pertinent part:

'Rule of construction of code.--. . . The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be construed liberally, with a view to effecting its objects and to promoting justice.'

Therefore, Chapter 39--17, N.D.C.C., the Unsatisfied Judgment Fund law, is to be construed liberally in order to carry out its object of compensating persons injured by unknown or financially irresponsible motorists.

We said, in Pearson v. State Unsatisfied Judgment Fund, 114 N.W.2d 257, 260 (N.D.1962), that a claimant 'is obliged to meet rigid requirements before he becomes entitled to the order' for payment of his judgment out of the Fund. The requirements for payment of a judgment form the Fund are set forth in § 39--17--03, N.D.C.C., and, as rigid as the requirements may be, they cannot be enforced in a manner that denies constitutional rights.

Joseph Ping, represented by counsel for the Unsatisfied Judgment Fund, asserts that, since the Unsatisfied Judgment Fund law does not set out how residency should be determined, resort must be had to the general residency rules in § 54--01--26, N.D.C.C. That section provides, in pertinent part:

'Residence--Rules for determining.--Every person has in law a residence. In determining the place of residence the following rules shall be observed:

'4. The residence of the father during his life, and after his death, the residence of the mother, while she remains unmarried, is the residence of the unmarried minor children;

'6. The residence of an unmarried minor who has a parent living cannot be changed by either his own act or that of his guardian; . . .'

For the definition of a minor, the applicable section is § 14--10--01, N.D.C.C., as it existed at the time the accident in the instant case took place. Prior to July 1, 1971, § 14--10--01 provided that minors were males under twenty-one years of age and females under eighteen years of age. Counsel for the Unsatisfied Judgment Fund asserts that the Fund only compensates residents; that Tang was twenty years old on the date of the accident and therefore was a minor; that his residence is that of his father, to wit: The Republic of Singapore; and that therefore Tang cannot recover from the North Dakota Unsatisfied Judgment Fund.

Counsel for the Fund, under his interpretation that males and females aged eighteen through twenty are treated differently, cites authority for distinguishing between males and females under the law. He cites decisions in the following cases: Bosley v. McLaughlin, 236 U.S. 385, 35 S.Ct. 345, 59 L.Ed. 632 (1915), which upheld restricted working hours for women pharmacists; Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948), which upheld a law prohibiting women bartenders in Michigan; Wark v. State, 266 A.2d 62 (Me.1970), which upheld a statute providing for a higher penalty for men escapees than for women escapees; Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 1968), which upheld a federal statute which grants women more favorable treatment than men in computing social security benefits; and Lamb v. State, Okl.Cr., 475 P.2d 829 (1970), which upheld juvenile treatment for females until age eighteen but for males only until age sixteen. (The statute under consideration in Lamb v. State, Supra, was held unconstitutional in Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972), a habeas corpus proceeding, as denying equal protection of the law. The Lamb v. Brown, Supra, holding was prospective only, so it did not specifically reverse Lamb v. State, Supra.) The case of Lamb v. State, Supra, was based on 'demonstrated facts of life' that allowed different treatment for males and females; however, the 'demonstrated facts of life' were not spelled out in that case. Whether or not there are 'demonstrated facts of life' that allow different treatment for males and females in the cases cited by counsel for the Unsatisfied Judgment Fund is not determinative of the instant case.

Counsel for the Fund also asserts certain facts of life concerning maturity differences in males and females as justification for different treatment of males and females aged eighteen through twenty.

The decisions cited and the alleged maturity differences asserted by counsel for the Fund are not persuasive in the instant case. We need not determine whether recovery from the Unsatisfied Judgment Fund is a fundamental right or whether sex is a suspect criterion in this case, since we can resolve the problem presented by using a traditional equal protection criterion, namely: that of whether the classification created has any reasonable relationship to the purpose of the statute in question. Morey v. Doud, 354 U.S. 457, 465, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957). We are mindful, however, that a recent decision of the United States Supreme Court has determined that classifications based upon sex are inherently suspect and must be subjected to strict judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

Prior to July 1, 1971, § 14--10--01 N.D.C.C., in pertinent part, read as follows:

"Minors' defined. Minors are:

'1. Males under twenty-one years of age; and

'2. Females under eighteen years of age. . . .'

If § 14--10--01(1), N.D.C.C., as in effect prior to July 1, 1971, were to be applied to § 39--17--03, N.D.C.C., of the Unsatisfied Judgment Fund law as an aid in determining residency, it would deny to males ages eighteen through twenty the equal protection of the law as prescribed by the Fourteenth Amendment to the United States Constitution.

By applying § 14--10--01(1), N.D.C.C., as in effect prior to July 1, 1971, to § 39--17--03, N.D.C.C., of the Unsatisfied Judgment Fund law, males and females of the ages eighteen through twenty are classified differently, and this different classification has no reasonable relationship to the purpose of the Unsatisfied Judgment Fund law. There are no 'demonstrated facts of life' or differences in maturity between males and females aged eighteen through twenty that can make bodily injury to males in that age group any less painful or any less deserving of compensation than bodily injury to females of the same age group. The purpose of the Unsatisfied Judgment Fund law is to protect qualified persons, and Tang cannot be arbitrarily excluded from that protection only because of his age or sex.

However, it must be remembered that we will construe legislation to be constitutional if at all possible. As was said in Hjelle v. Sornsin Construction Co., 173 N.W.2d 431, 432 (N.D.1...

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