FAIRMOUNT TOWNSHIP BOARD OF SUPERVISORS BY the FAIRMOUNT TOWNSHIP ZONING BOARD, Plaintiff and Appellee, v. John R. BEARDMORE, d.b.a. Big Dipper Enterprises, Inc., and Steve Campbell, Defendants and Appellants.
Civ. No. 880089.
Supreme Court of North Dakota.
Nov. 8, 1988.
431 N.W.2d 292
Goeman next argues that, once he was stopped, there was no probable cause to arrest him. In detеrmining whether probable cause to arrest exists, it is not necessary that an officer possess knowledge of facts sufficient to establish guilt; rather, all that is required is “knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred.” State v. Hensel, 417 N.W.2d 849, 852 (N.D.1988) [citing State v. Klevgaard, 306 N.W.2d 185 (N.D.1981)]. See also Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In the present case, the officer observed Goeman‘s vehicle weaving within its lane, at one point almost striking another vehicle. When stopped, Goeman had difficulty getting out of his vehicle, smelled of alcohol, leaned against his vehicle while producing his license, was hesitant in performing the finger-to-nose test, and his speech was slurred. This evidence was sufficient to establish probable cause that Goeman was driving under the influence of alcohol.
Goeman argues that he should have been sentenced as a first offender because there was no evidence that his prior conviction was obtained in compliance with his Federal and State constitutional and statutory rights. More specifically, he asserts, the court which convicted him did not comply with
Goeman was convicted in Fargo municipal court in 1985 for driving under the influence of alcohol. In pleading guilty to that charge, Goeman signed a Notification of Rights and Acknowledgment form. The form signed by Goeman is identical to the form which was at issue in City of Fargo v. Christiansen, 430 N.W.2d 327 (N.D.1988), and that case is controlling. In Christiansen, we held that once the State introduces a form signed by the defendant which indicates that the court “acted in accordance with the defendant‘s constitutional rights and privileges, and substantially complied with the procedures adоpted to protect those rights and privileges, the record should be deemed adequate and the process chosen by the court should be given considerable weight.” 430 N.W.2d at 330. Because Goeman did not introduce еvidence indicating that the Waiver of Rights and Acknowledgment form does not correctly reflect what transpired at the hearing in 1985, evidence of that conviction was admissible to enhance the sentence of thе present conviction.
The judgment is affirmed.
ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.2
Johnson, Johnson, Stokes, Sandberg & Kragness, Ltd., Wahpeton, for defendant and appellant Steve Campbell; argued by Leo F.J. Wilking for appellant Beardmore.
Serkland, Erickson, Marcil & McLean, Ltd., Fargo, for Fairmount Bd. of Supervisors, plaintiff and appellee; argued by Brad A. Sinclair.
LEVINE, Justice.
John Beardmore (Beardmore) and Steve Campbell (Campbell) appeal from a distriсt court judgment requiring them to pay attorney fees and expenses incurred by the Fairmount Township Zoning Board (the Board) in the processing of Beardmore and Campbell‘s application for a permit to construct a sanitary landfill facility. We affirm.
On November 16, 1979, Beardmore and Campbell submitted a joint application to the Board seeking a special use permit to
“The applicant for a Permit shall be liable for аnd pay to the Township Clerk sufficient sums of money to pay for and cover all the costs incurred by the Township for the processing of such application, including but not limited to: publication costs; attorneys’ fees; mileage; copy expense, etc. No Permit shall be issued until all such costs and fees prescribed herein have been paid by the applicant, unless the Township Zoning Board has otherwise provided by resolution fоr a particular case.”
The Board took the necessary steps to process Beardmore and Campbell‘s application, but a special use permit was never granted. On September 27, 1982, the Board finally denied the permit and voted to pursue Beardmore and Campbell for legal fees and expenses incurred after the enactment of the ordinance in the processing of their application.
The district court determined that the ordinance, enacted during the processing of the application, was intended to apply “retroactively,” to Beardmore and Campbell and accordingly awarded thе Board reimbursement for its attorney fees and expenses.2
Beardmore and Campbell contend that the trial court erred in retroactively applying the ordinance to them. They argue that the ordinance is nоt intended to be retroactively applied to their application.
The dispositive issue is whether the ordinance as applied to Beardmore and Campbell constituted a retroactive application. The interpretation of a statute is a question of law fully reviewable by this court. Rocky Mountain Oil & Gas Ass‘n v. Conrad, 405 N.W.2d 279, 281 (N.D.1987). We are also able to fully review the interpretation of an ordinance. See City of Bismarck v. Sholy, 430 N.W.2d 337 (N.D.1988); Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131 (N.D.1984).
When interpreting an ordinance, we apply the rules of construction applicable to state statutes. Sholy, supra; City of Minot v. Central Avenue News, Inc., 308 N.W.2d 851, 862 (N.D.1981). Generally, all statutes are to be applied prospectively unless the legislature or enacting authority clearly expresses that they are to be applied retroactively.3 See Reiling v. Bhattacharyya, 276 N.W.2d 237, 240-41 (N.D.1979);
The ordinance provides that “[t]he applicant” is to pay costs incurred by the Board in the processing of an application. Beardmore and Campbell clearly were applicants and they continued to be applicants until they were denied the permit. Thus, they are members of the class upon whom the ordinance, by its clear language, imposes the obligation of payment. Does this
An ordinance is retroactive if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new liability in respect to transactions or considerations already passed. 6 McQuillin, Municipal Corporations, § 20.70 (3rd ed. 1988); see State v. J.P. Lamb Land Co., 401 N.W.2d 713, 717 (N.D.1987). See also Reiling, supra at 239 (a statute is applied retroactively when it is applied to a cause of action that arose prior to the effective date of the statute). The ordinance, as applied to Beardmore and Campbell, does not take away or impair vested rights. There are no vested rights at stake becаuse an applicant for a license or permit does not have vested rights, but a mere expectancy.4 See Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59-60 (2d Cir.1985). See also Leonard v. Medlang, 264 N.W.2d 481, 484 (N.D.1978) (no vested rights where one only hopes or plans to use property in a certain way in the future). The ordinance does not require Beardmore and Campbell to pay costs incurred before the effective date of the ordinance. The ordinance was applied to require them to pay only futurе costs incurred by the Board in the processing of their application. So applied, the ordinance does not impose a new obligation or duty with respect to past transactions; nor does it attach a new liability for past transactions. Instead, it requires future payment of future costs incurred by the Board. We see nothing retroactive about the application of the ordinance to Beardmore and Camрbell.
We conclude that the prospective application of the ordinance requires Beardmore and Campbell to pay the Board‘s costs and attorney fees incurred after the effectivе date of the ordinance.
Although we disagree with the trial court‘s legal rationale, the correct outcome will not be set aside merely because the trial court assigned incorrect reasons for its decision if the results are the same. First National Bank of Belfield v. Burich, 367 N.W.2d 148, 154 (N.D.1985).
Accordingly, the judgment is affirmed.
ERICKSTAD, C.J., and MESCHKE and VANDE WALLE, JJ., concur.
PEDERSON, Surrogate Justice, sitting in place of GIERKE, J., disqualified.
PEDERSON, Surrogate Justice, concurring specially.
Courts avoid interpretations of statutes which raise questions of constitutional validity. Grace Lutheran Church v. North Dakota Employment Sec. Bureаu, 294 N.W.2d 767 (N.D.1980). Appellate courts, likewise, ordinarily except for jurisdictional matters, do not answer questions that are not properly raised in the trial court. Farmers State Bank of Leeds v. Thompson, 372 N.W.2d 862 (N.D.1985). Nor which are not raised, briefed, and argued on appeal. Center State Bank, Inc. v. State Bank. Bd., 276 N.W.2d 132 (N.D. 1979).
A statute or ordinance could be constitutionally invalid on its faсe, or in its application in a specific case, even though its retroactivity is explicitly declared in the statute or ordinance itself. The majority opinion properly avoids consideration of the questions that were not raised.