N. D.) STATE v. TAYLOR the same to be delivered to the proper officers A similar objection was made to the 1913 The objection was sustained on the ground that: act. which led to its enactment, and make such ap- See, also, 36 Cyc. 1110. The act then under consideration attempted "to give to the commissioner of insurance the arbitrary power to determine how much of such fund shall be applied to the payment of losses, and how much to the payment of deputies, clerk hire, and other expenses of the department, and, particularly, because no limitation is placed upon the amount which may be devoted to the last-duced the former act. mentioned subject." See State v. Taylor, 27 N. D. 78, 84, 145 N. W. 425. The present law was enacted by the Legislature to accomplish the purpose sought to be accomplished by the former act. It was It is presumed that introduced by the same Senator who introthe Legislature, in passing the statute unedge of the constitutional scope of its powers, der consideration, "acted with a full knowlRelator contends that the amount (not ex- of prior legislation on the same subject, and ceeding $1,500) authorized to be expended its construction by the courts." 36 Cyc. 1135. "for clerical help and incidental office ex- See, also, 36 Cyc. 1153. It is presumed that penses" under the provision of section 14 of the Legislature intended to enact a valid law. the present act applies only to salaries of And therefore, when a statute is susceptible clerks and incidental expenses connected with of two constructions, one of which will renthe office, and does not apply to other neces- der it valid, and another which will render 26 Am. & Eng. sary expenses of organizing and operating it unconstitutional and void, the former conthe bonding fund, such as blanks, books, and struction will be adopted. And the relator contends that, Enc. L. 640; Cooley's Const. Lim. 255. These stationery. with respect to such latter expenses, the well-known rules are peculiarly applicable commissioner of insurance is given an un- to the statutory provision under consideralimited authority to expend any amount of tion. And by applying these rules we reach money which he may desire, and that there- the conclusion that the Legislature did not fore the decision of this court in holding the intend to authorize the commissioner of informer act unconstitutional as an unwar-surance to expend to exceed $1,500 per anranted delegation of legislative powers ap- num for all expenses in his office, inclusive of clerical assistance and office supplies for plies equally to the present act. operation of the state bonding fund. If The province of the courts is to construe and interpret laws-not to make them. the language of a statute is clear and unambiguous, there is no room for construction, and the Legislature must be presumed to have intended to say what it said. 36 Cyc. 1106, 1107; 26 Am. & Eng. Enc. L. 598. This is so even though the statute, so understood, "leads to absurd and mischievous results; for courts are not to inquire as to the motive of the Legislature, nor to depart from a meaning clearly conveyed in unambiguous words, because the statute, as literally understood, appears to lead to unwise consequences or to contravene public policy." 26 Am. & Eng. Ency. L. 599. Construction or interpretation becomes necessary only in cases where an act is ambiguous or of doubtful The object of all interpretation meaning. and construction of statutes is to ascertain and give effect to the intention of the Legislature. 36 Cyc. 1106; 26 Am. & Eng. Enc. [10] 10. The relator next contends that it would be impossible to operate the state bonding fund for $1,500 per year, and that this limitation upon operating expenses will render the act "wholly ineffective, inoperative, and impossible of performance because of lack of means and funds to conduct the same." The objection does not rest on constitutional grounds. It is not contended that any specific constitutional provision has been The violated. The objection merely goes to the wisdom and policy of the legislation. moneys to be expended in executing or administering a legislative enactment is peculiarly a matter for legislative determination. itself on the subject, and for reasons satisIt is presumed that the Legislature informed factory to its judgment determined the amount of necessary operating expenses, and See 6 R. C. L. §§ 111-113. With the fixed the maximum thereof at $1,500 per anwisdom of this legislation we are not concerned. The responsibility therefore rests upon the Legislature, and not upon the courts, and it is difficult to see why the relator too parsimonious in the allowance of opershould complain because the Legislature was If any one has cause for "For this purpose the court should put itself ating expenses. in the place at the time of its enactment, of complaint, it would be the commissioner of the Legislature which passed it, investigating insurance, whose duty it is to operate the dethe then existing state of the common or statu- partment. He, however, does not complain. tory law on the subject, contemporaneous circumstances, and the external or historical facts | But in his return herein he admits that he L. 597. In order to ascertain the legislative intent it is proper to consider the occasion and necessity of the enactment, the defects or evils of the former law, and the mischief sought to be prevented or cured by the new legislation. num. is about to perform the duties prescribed by the act; denies that the act is unconstitutional for any of the reasons assigned by the relator; further admits "that he is permitted to employ clerks and servants to conduct the additional labor imposed upon his office by said act, and he is further authorized to prepare the necessary blanks, books, stationery, and postage; but alleges that the amount to be expended for such purposes is limited and fixed by the terms of the act." [11] 11. The relator also asserts that: "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." This objection is predicated upon section 9 of the act, which reads as follows: "The officer to be bonded shall, prior to the execution of such bond, execute and file in the office of the commissioner of insurance, an instrument appointing the commissioner of insurance and his successors his true and lawful attorney upon whom all process in any action or proceeding against such officer may be served, and therein shall agree that any process which may be served upon his said attorney shall be of the same force and validity as if served on him personally, and that the authority thereof shall continue in force, irrevocable so long as any liability of such official or of such state bonding fund remains. In actions upon such bond when the sheriff files his return that he is unable, after diligent search, to find such bonded officer for the purpose of serving the summons, service upon the commissioner of insurance shall be deemed and held to be personal service upon such bonded official. process against any such bonded official shall be Whenever served upon the commissioner of insurance, he shall forthwith mail a copy of such process, postage prepaid, directed to such bonded official at the residence of such official stated in such instrument. The commissioner shall keep a record of all such process which shall show the time and hour of service." The relator says that: This section "takes away from every citizen who happens to be an officeholder and whose official acts have been questioned either rightfully or wrongfully, the right of * ** having process served personally upon him one of the most valuable rights which are accorded to the citizen by the Constitution." Relator's counsel assumes that the provision under consideration dispenses with personal service upon the principal (the officer bonded) in all actions upon claims arising under the state bonding fund act. The act is not susceptible of this construction. It clearly contemplates personal service upon the officer bonded the same as in all other actions where such service may be had. The provision for service upon the commissioner of insurance as attorney becomes applicable only "in actions upon such bond when the sheriff files his return that he is unable, after diligent search, to find such bonded officer for the purpose of serving the summons." Obviously the only persons whose rights are affected or whose property may be taken are the municipal officers who hereafter may procure official bonds under the provisions of the state bonding fund act. And the rights of such officers could be affected only in a case wherein it was sought to obtain and enforce against them or their property a personal judgment based upon service of process made upon the commissioner of insurance as attorney. Whether an officer could in any event successfully maintain the objection sought to be raised by the relator we are not called upon to determine. The relator is not an officer, and his rights are not, nor are the rights of the state, or any of its municipalities or citizens, generally affected. The rights of claimants to maintain actions and establish their claims against the state bonding fund are not affected, nor are the rights of the commissioner of insurance to defend such actions lessened or impaired. It is a firmly settled principle of law that a court will not listen "to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it." Cooley's Const. Lim. (7th Ed.) 232. Cyc. (8 Cyc. 788) states the rule thus: ing of private property without due process of "All constitutional inhibition against the taklaw 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 per sons. "A person who is seeking to raise the question as to the validity of a discriminatory statute has to the class which is prejudiced by the statute." no standing for that purpose unless he belongs cludes the party complaining is in no wise prej6 R. C. L. 89. And, "where the class which inudiced, the general rule is that it is immaterial whether a law discriminates against other classes, or denies to other persons equal protection of the laws." 6 R. C. L. 88. But "a member of a particular class which may be discriminated against does not necessarily have the right to champion any grievance of that entire class in the absence of any actual interest which is prejudiced or impaired by the statute in question." 6 R. C. L. 90. This principle has repeatedly been announced by this court. State v. McNulty, 7 N. D. 169, 73 N. W. 87; State v. Donovan, 10 N. D. 203, 86 N. W. 709; Turnquist v. Cass County, 11 N. D. 514, 92 N. W. 852; Ely v. Rosholt, 11 N. D. 559, 93 N. W. 864; State V. Stevens, 19 N. D. 249, 123 N. W. 888. In State v. McNulty, supra, a search warrant had been issued under the provisions of the state prohibition law for the seizure of all property in a certain building. Part of the building was occupied as a hotel, and the statute under which it was issued were indefendant claimed that the warrant and the valid, for the reason that the property of guests in the hotel might be taken without due process of law. In disposing of this contention this court said: difference to him whether the property of third persons is This objection is directed at the following provisions of the act: "Sec. 2. * sued * the sum in excess of $50,000 with a duly authorized surety company or by personal sureties. The premiums on such excess bonds, except in the case of personal sureties, shall be paid out of the county, village, city, town, school district or township treasury as the case may be. No court has applied this principle with greater force than the federal Supreme Court. See Clark v. Kansas City, 176 U. S. 114, 20 No such bonds shall be isSup. Ct. 284, 44 L. Ed. 393; Aluminum Comfor the bonding of any official pany of America v. Ramsey, 222 U. S. 251, official required by law to be bonded in any for a greater amount than $50,000; and any 32 Sup. Ct. 76, 56 L. Ed. 185; Collins v. Tex-greater amount than $50,000, shall be bonded in as, 223 U. S. 288, 32 Sup. Ct. 286, 56 L. Ed. 439; Standard Stock Food Co. v. Wright, 225 U. S. 540, 32 Sup. Ct. 784, 56 L. Ed. 1197; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364; Tyler v. Court of Registration, 179 U. S. 405, 21 Sup. Ct. 206, 45 L. Ed. 252. See, also, State v. Kirby, 34 S. D. 281, 148 N. W. 533; Jensen v. Southern Pac. Ry. Co., 215 N. Y. 514, 109 N. E. 600; Cram v. Chicago, etc., R. Co., 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas. 170, and valuable note commencing at page 175 in latter report. [12] 12. No person is required to obtain an official bond from the state bonding fund. A bond executed by personal sureties or by a surety company may still be furnished as before. The act exacts the same requirement from all officers accepting the benefits thereof. Whether any person who accepts the benefits of the state bonding fund act can subsequently be heard to say that any of its provisions are invalid we do not determine, because that question is not properly before us in this action. Obviously this court should not decide questions abstractly, or speculate upon the proper decision of issues which may never arise. The extent of inquiry in an original proceeding in the Supreme Court was recently considered by the Supreme Court of Wisconsin in State v. Frear, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164, L. R. A. 1915B, 569, 606, Ann. Cas. 1913A, 1147. That was an original proceeding assailing the constitutionality of the state income tax law. The court held: "That in such action only those questions will be determined which may be considered as relating to the validity of the whole act, leaving for future consideration, as concrete cases may arise, the questions relating to the validity of minor provisions as to matters of detail." The court declined to decide in that action whether national banks or public of ficers could be constitutionally subjected to the payment of such tax. See, also, State v. Eberhardt, 158 Wis. 20, 147 N. W. 1016; Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 137; State v. Howard, 96 Neb. 278, 147 N. W. 689, 695; State ex rel. Lenhart v. Hanna, 28 N. D. 583, 149 N. W. 573; Phoenix Railway Co. v. Geary, 239 U. S. 277, 36 Sup. Ct. 45, 60 L. Ed. -; Minsinger v. Rau, 236 Pa. 327, 84 Atl. 902, Ann. Cas. 1913E; Flint v. Stone-Tracy Co., 220 U. S. 107, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312. [13] 13. It is next asserted that the act contains wrongful and unlawful discriminations and arbitrary classifications, and therefore contravenes section 11 of the state Constitution, which reads: "All laws of a general nature shall have a uniform operation.' "Sec. 3. The premiums of such bonds shall be twenty-five cents per hundred dollars per year on all bonds issued. Such premium shall be paid in advance by the proper authorities of or township, from its respective treasury to the each county, city, town, village, school district state treasurer, who shall issue receipts therefor as hereinafter provided. The minimum on small bonds and short term officers' bonds shall not be less than $2.50." The specific objection is: (1) That the du ties, obligations, dangers, and risks of the various officers to be bonded are of such different degrees that different premiums should be charged; and (2) that any county whose treasurer is required to furnish bonds in excess of $50,000 will be compelled to pay an excessive rate for the bond required in excess of $50,000. The Constitution neither requires municipal officers to furnish official bonds, nor does it exempt them from so doing. In absence of such constitutional provisions, it is generally held that the Legislature has the right to require such officers to furnish bonds. 29 Cyc. 1375 et seq. See, also, Dillon on Municipal Corporations (5th Ed.) §§ 97–103, 394–396, 433. In such case the Legislature (within the limits of its constitutional authority) may also determine what officers shall furnish such bonds and the amounts and conditions thereof. The Legislature of this state has designated the officers required to furnish bonds, and prescribed the conditions and amounts thereof. Sections 660, 663, et seq., Compiled Laws. In 1899 the Legislature enacted a law providing that every county treasurer must furnish a surety bond, and that the amount of the premium therefor shall be audited and paid out of the general fund of the county. Section 664, Compiled Laws. And in 1903 the Legislature enacted another law providing that, whenever any county, township, city, village, or school district officer thereafter elected shall be required by law to give or furnish a bond for the faithful performance of his duties, such bond may be executed by some responsible surety company authorized to do business in the state, and that the premium for such bond shall be audited and paid out of the general fund of the county, township, city, or school district, as the case may be, for whose benefit the same is given. Section 669, Compiled Laws. These statutory provisions have remained in force ever since they became effective. The amount of official bonds to be furnish it did, practical legislation would be quite impossible. ** The same contention was urged in Leavenworth v. Miller, 7 Kan. 479, 12 Am. Rep. 425. In denying it, and holding that an act authorizing counties to subscribe for stock, and to issue bonds to aid in the construction of railroads, did not violate this provision, the court said: The act under consideration is so obviously in harmony with this section that supposed incongruity needs no elucidation from the question attempted to be raised upon its us. All the provisions of said act are expressly enacted for the whole state, and for every part of the state; and it is no more necessary that the same amount of stock be taken in each and every county in the state, in order that the ed by the various county officers as fixed by | form operation. This provision does not rethe Legislature in no instance exceeds $50,- quire uniformity in the execution of laws. If 000 in amount, nor can any county officer be required to furnish a bond exceeding this amount, except the sheriff, coroner, and county treasurer, which officers are required to furnish bonds in a penal sum to be fixed by the board of county commissioners. Each of these officers, therefore, may be required, upon direction by the county commissioners, but not otherwise, to furnish a bond in excess of this amount. As already stated, the requirement that municipal officers furnish official bonds depends solely upon legislative enactment. The Legislature could have pro-act shall have a uniform operation therein, than vided that no municipal officer should be required to furnish a bond in an amount exceeding $50,000, or it could have dispensed with such bonds altogether. The constitutional provision invoked by the relator was first construed by this court in Vermont Loan & Trust Co. v. Whithed, 2 N. D. 82, 49 N. W. 318. In that case this court, speaking through Mr. Justice Bartholomew, said: "The uniform operation required by this provision does not mean universal operation. A general law may be constitutional, and yet operate, in fact, only upon a very limited number of persons or things, or within a limited territory. But, so far as it is operative, its burdens and benefits must bear alike upon all persons and things upon which it does operate, and the statute must contain no provision that would exclude or impede this uniform operation upon all citizens, or all subjects and places, within the state, provided they were brought within the relations and circumstances specified in the act." It was again construed in Picton v. Cass County, 13 N. D. 242, 100 N. W. 711, 3 Ann. Cas. 345, wherein an act which provided for the enforcement by judicial proceedings of taxes upon real property sold to the state or county, and remaining unredeemed for more than three years, and gave to the several boards of county commissioners of all counties in the state a discretionary authority to institute such judicial proceedings, was assailed as violative thereof. In that case this court, speaking through Chief Justice Young, quoted with approval the language used by Mr. Justice Bartholomew in Vermont Loan & Trust Co. v. Whithed, quoted above, and further said: "It has already been noted that the act under consideration contains no provision restricting its operation. On the contrary, it is in force and available in every county in the state. It is probable that all counties will not avail themselves of the remedy provided by this act at the same time. Some may proceed in one year, others later, and some possibly not at all. The rights of the county and the state, as well as the tax debtor, in reference to these forfeit ed lands, in counties where the remedy is invoked, will be different from those which exist in counties where it is not resorted to. This, however, is merely a difference arising from the application of different remedies. The consequences are the same in each county in which the remedy is applied, and, as we have seen, it is applicable to every county in the state. That satisfies the requirement of the Constitution that laws of a general nature shall be of uni that the same number of men shall be executed in each county of the state, in order that the law punishing murder in the first degree shall have a uniform operation throughout the state."" See, also, Minneapolis & N. Elev. Co. v. Traill Co., 9 N. D. 213, 82 N. W. 727, 50 L. R. A. 266; State ex rel. Hagen v. Anderson, 22 N. D. 65, 132 N. W. 433. These decisions are in harmony with the holdings of the federal Supreme Court on analogous questions. Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148; Jef fry Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364; German Alliance Ins. Co. v. Lewis, 233 U. S. 378, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342, 59 L. Ed. 628, L. R. A. 1915F, 829; Bosley v. MeLaughlin, 236 U. S. 385, 35 Sup. Ct. 345, 59 L. Ed. 632; Heim v. McCall, 239 U. S. 175, 36 Sup. Ct. page 78, 60 L. Ed. -; Hadacheck v. Sebastian, 239 U. S. 394, 36 Sup. Ct. 143, 60 L. Ed. -; Miller v. Strahl, 239 U. S. 426, 36 Sup. Ct. 147, 60 L. Ed. In Atkin v. Kansas, supra, the court held: "The equal protection of the laws is not denied to a contractor for a public work or his employés by the provisions of Kan. Gen. Stat. 1903, $$ 3827-3829, making it a criminal of fense for such contractor to permit or require an employé to perform labor upon the work in excess of eight hours each day." In discussing this point in that case the court said: "Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or to his employé the equal protection of the laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the state or of its municipal subdivisions, and alike to all employed to perform labor on such work." In Jeffry Mfg. Co. v. Blagg, supra, it was held that employers having five or more employés are not denied the equal protection of the laws because their failure to comply with the terms of the Ohio Workmen's Compensation Act by paying into a state insurance fund thereby created the premiums required by that act deprives them in negligence suits of the defenses of contributory negligence, assumed risk, and the negligence of fellow servants, while those employing four or less employés are still privileged to make either or all of these defenses. In German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, the court held that an act of the Kansas Legislature regulating the rates of fire insurance companies was not rendered invalid as to other insurance companies, as denying the equal protection of the laws, by a provision in such act whereby farmers' mutual insurance companies organized and doing business under the laws of the state, and insuring only farm property, were exempted from such regulation. The state bonding fund act does not discriminate in favor of or against any particular municipality or municipalities. Nor does it discriminate against any officer or officers belonging to the same class. It applies equally and uniformly to all municipalities and persons similarly situated. The duties to be performed by the incumbent of a particular office are of the same character in every county in the state. The danger and risk of loss incident to any particular office are presumptively the same in the different counties. If the premiums charged for the official bonds of certain officers are too low, every official of that class and every county in the state is similarly affected. If the premium for the official bonds of other officers is too high, every official of that class and every county in the state is similarly affected there of the funds in the custody of the state treasurer, and, although in the form of a special fund, they are unquestionably funds in the state be drawn except in the specific manner pointed treasury, and such funds cannot constitutionally out by the Constitution." The same contention was made with respect to the state hail insurance fund. And in the case of State ex rel. Olson v. Jorgenson, 29 N. D. 173, 150 N. W. 565, this court held that the moneys in the state hail insurance fund did not constitute moneys in the state treasury within the provisions of section 186 of the Constitution. In considering this point the court said: "The fund known as the hail insurance fund is composed of moneys which do not belong to the state, and which are not state funds. That fund is not used in carrying on any function of government. It is not raised by taxation, by the payment of fees, is not received from the sale of lands, or for interest on land contracts, or in any other manner which constitutes it a the state. It is derived from premiums paid by state or public fund, and is not the property of owners of crops within the state, which premiums are held by the state treasurer and disbursed, after paying expenses provided for by the by the persons whose crops have been insured, act in question, to pay losses from hail incurred and no appropriation is necessary to authorize its disburseinent. The treasurer is the custodian of the fund, not a state fund, but a fund belonging to those who contributed it for the purpose named." * * See, also, State ex rel. Stevenson v. Ste The language and reasoning applied to the state hail insurance fund is also applicable to the state bonding fund. The moneys in the state bonding fund do not belong to the state, but are deposited with, and held by, the state treasurer in trust, for the benefit and protection of those who under the terms of the act may become claimants against such fund. In no event do such moneys become the funds of the state. They may be disbursed only for three purposes: (1) Operation expenses; (2) payment of losses; (3) accumulation of a surplus fund of $100,000, and at the close of each year a proportionate distribution among the various municipalities of any moneys in the fund in excess of such surplus fund. by. All are treated alike. The same holds phens, 136 Mo. 537, 37 S. W. 506, and State true with respect to other municipalities. This is also true with regard to the limita-Lewis, 18 N. D. 125, 134, 119 N. W. 1037. tions placed upon the amount for which any official may be bonded. This limitation applies to all officers and all municipalities. Any municipal officer may be bonded to the amount of $50,000. None can be bonded for a greater amount. So far as the excess is concerned, the former law remains. The limitation in amount of any one risk to be assumed by the state bonding fund is merely a recognition of the same principle found in the laws of this state limiting the amount of any one risk which an insurance company may assume, and the amount which any banking corporation may loan to any one person or concern. This is generally recognized as a proper and valid exercise of legislative power, as well as sound, wise legislative pol- constitutes an unwarranted legislative intericy. If it is within the province of legisla- ference with local and municipal affairs. No tive power and policy to impose such restric-specific constitutional provision is pointed tions upon private corporations engaged in out as being violated, but the objection rests this class of business, there seems to be no good reason why it should be beyond such power to impose restrictions of a similar nature upon the same business when it is carried on under the direction of the state itself. [14] 14. It is also asserted that the act violates 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 officer. [15] 15. The next contention is that the act upon the doctrine, frequently asserted, and at times upheld, known as "the right of local self-government." This doctrine, however, merely recognizes the fundamental principle that "all political power is inherent in the people," and that the people have the right to distribute the powers of government in such manner, as in their judgment, the public good may require. Therefore, when the people, in their Constitution, have reserved to themselves the right to have certain local officers perform certain governmental functions, the Legislature has no power to deprive the people of the right thus reserved either |