191 N.W. 485 | N.D. | 1922
This is an appeal from a judgment and for costs and disbursements. It will be conducive to a clear comprehension of the issues involved to set forth a concise statement of the material facts necessary to be stated: On the 6th day of December, 1920, at Bismarck, North Dakota, the defendant executed and delivered to plaintiff, his promissory note of that date in the sum of $60, bearing interest at 10 per cent per annum, and dire on demand. Demand for payment of the note was duly made. No payment was made, except the sum of $2. At the time the action was commenced plaintiff was the owner and holder of the note.
At the time of commencement of the action there was a duly appointed, qualified, acting conciliation board within and for the county of Burleigh, state of North Dakota, which was appointed by virtue of the provisions of chapter 38 of the Session Laws of 1921, which repealed §§ 9187-9192 of the Comp. Laws, 1913. The plaintiff before commencement of this action did not file in any court a certificate of a conciliator, showing any attempt to effect a settlement of the claim upon which the action is brought. He made no attempt to have his ■claim submitted to conciliation. In the action no provisional or ancillary remedy was sought nor was there involved therein title or possession of real estate; nor has any district judge directed the issuance of process therein without recourse to conciliation proceedngs. There are no other material facts.
Were it not that the ultimate issues, and innovation in the administration of justice, provided for in the act in the kind of controversies to which it relates concerns, not only the social welfare of the citizens of this state, but indirectly may concern the welfare of the citizens of other states of the Union, should such other states or any of them at some future time see fit to follow the example of North Dakota in the enactment of a conciliation act, the first of the states to establish a state wide tribunal of conciliation, the case would be of minor importance, but in the circumstances the case is one of unusual public interest. The case has been ably briefed by the counsel of both parties, and especially able and helpful is the brief filed by Honorable John Wigmore of counsel, author of the well-known work on evidence, which bears his name, who, from public interest, appeared on behalf of the American Judicature Society, and Herbert Harley and Albert Kocourek, who appear as amici curias, and whose participation is also from public interest.
The manifest purpose of the act is to facilitate, regulate, and encourage a voluntary adjustment of matters which otherwise would or may become the subject of legal controversies, where such amount does, not exceed $200, and to provide a means to accomplish that end, the use of which will not necessitate invoking the powers and functions of the ordinary and regularly constituted courts of justice. Perhaps ill this state from one third to one half of all civil causes involve not to exceed $200, any of which may be litigated from. the lowest to the highest
The purpose of the act being praiseworthy, seeking to maintain amicability between those who otherwise might be compelled to resort to expensive litigations over claims within the amount specified by the act, it should be sustained unless its provisions are inhibited by the fundamental law of the United States or of this state. That the act in various respects and for various reasons contravenes in certain respects, the Constitution of the United States and that of the state of North Dakota is the contention of the appellant. Appellant’s contentions challenging the validity of the act are eight in number; each will be considered in the order adopted in appellant’s brief.
Point “1.”
Appellant contends that the act is unconstitutional and contravenes § 61 of the Constitution of North Dakota, in that its title is defective.
The subject of the bill which became chapter 38 is Conciliation of Controversies, that is, the subject-matter or object of the bill is conciliation of controversies. It is evident that there could bé no conciliation of controversies, unless there were a tribunal, conciliation board, or a conciliator or conciliators with powers to be exercised in a definite territory, and before whom such controversies could be taken for conciliation ; it is also clear, that in order for the tribunal or board to properly function, some form of .organization would necessarily have to be provided and the powers and duties of the conciliators or a conciliator defined and his or their compensation fixed. Again, in order for the board of conciliation or the conciliators to function and to accomplish the purpose intended, there would need to be some method of procedure prescribed through which proceedings might be brought before them. A proper bill for the conciliation of controversies would designate some authority empowered to establish a conciliation board in definite territory. It would specify a means of designating conciliators and their number, their eligibility, compensation, and in what manner they should qualify before entering upon the discharge of their duties, the extent of their jurisdiction and any limitations of it; provide for conciliation proceedings, as a prerequisite to process and provide for the repeal of other laws or sections of other laws in conflict with the act. All of these matters would be germane to the organization, jurisdiction, and procedure of a tribunal or board, created for the conciliation of controversies. The bill under consideration contains all these essential matters or things and perhaps more of similar import to which specific reference has not been made. It consists of fifteen sections, all of which are germane to the organization, jurisdiction, and procedure of the tribunal or board for the conciliation of controversies created by the act. In short, the whole subject-matter of the bill relates to the conciliation of controversies. The subject of the bill is expressed
Point “2.”
It is contended that appellant was denied the right of trial by jury secured by § 7 of the state Constitution, which provides -so far as material here: “The right of trial by jury shall be secured to all, and remain inviolate.” Section 5 of the act provides: “After the expiration of said ninety days, no process shall be issued in commencement of a civil suit by any justice of the peace or by any other trial court unless the moving party shall file in court, a certificate of a conciliator showing that an attempt has been made to affect a settlement of the claim and that such attempt has failed; but the foregoing shall not apply to actions known as provisional or remedial remedies, actions involving title to or possession of real estate and suits involving over $200.' Provided, however, that any district court judge in chambers may in a particular instance, on a proper showing, direct the issuance of any such process in any trial court without recourse to conciliation proceedings.”
Section 6 deals with the application for a conciliation and the notice to be given by the conciliator to the party complained of and of the requirement of the party to appear before the conciliator. Section 12 provides: “In case the party complained of shall fail to appear at the conciliation hearing or for any other reason there shall be no settlement of the controversy by agreement of the parties, then the conciliator shall give to either or both parties, upon request, his certificate to the effect that an attempt had been made in good faith by the moving party to affect a settlement of the controversy, which shall be concisely described, and that the attempt has failed.”
The meaning of these sections, as we view them, is simply this, That no action involving $200, or less shall be commenced in any court, unless it come within some of the exceptions specified in the act, until the moving party, that is, the party who claims to recover first, shah have complied with the provisions of the act, and has received a certificate of the conciliator to the effect that an attempt had been made in
Courts, in addition to the power of issuing process have the right to hear, determine, and decide legal controversies presented before them. Where any- of these powers is lacking there is no court. The board of conciliation or any conciliator has not the power of issuing process; Upon an application for conciliation made, there is no power to issue process compelling the person against whom the claim is, to appear before the board or a conciliator. All the conciliator may do is to inform the party complained of by letter, telephone, or personally, to appear before him at a certain time; but, if he does not appear, all the conciliator can do is to certify to that fact and to such facts as under § 12 may bo properly included in this certificate. He cannot determine nor decide the controversy, if there is objection by either party, as a
Points “3” and “4.”
It is contended that the act violates § 13 of the Constitution of the state of North Dakota, and articles 5 and 14 of the amendments to the Constitution of the United States. § 13 relates to due process in criminal prosecutions. It defines certain rights possessed by one charged with the commission of the crime. It has no application here as this matter is a conciliation proceeding, relating to a promissory note. As to the 5 th Amendment of the Federal Constitution, it is sufficient to say that defendant may not invoke it. It is, we believe, quite firmly established by the decisions of the Federal Supreme Court, that the 5th amendment is a limitation of power of the Federal government, and not of the power of the states. The proceeding here is one before a board of conciliation, or before a conciliator, acting wholly under state legislation. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. ed. 151, 28 Sup. Ct. Rep. 40; Barron v. Baltimore, 7 Pet. 243, 8 L. ed. 672.
The act is not, as contended, a denial of due process of- law under either the state or Federal Constitution. All process and every remedy which the appellant had at law, he still has. These have been in no way abridged nor taken away from him. All that is required of him is, that before resorting to such process and the use of such remedies as a condition precedent, he must possess the certificate of a conciliator, showing that the matter was submitted for conciliation, as required by the Act and no conciliation' effected; unless the case is one which comes within some of the exceptions specified in the Act and in such event, no such certificate is required. Requiring such a condition pre
The plaintiff claims the act unconstitutional on the ground that the attorneys of this state have a valid and existing contract with the state to represent litigants in all courts and in all proceedings and that the act impairs that contract. The law cannot be asserted to be invalid for this reason. The authority granted by the state to persons to prac-tise law, after proof of proper qualifications prescribed by law, and after compliance with any statutory enactments in that respect, is not a contract right, but merely a privilege or license. The record does not show that appellant is an attorney. We assume therefore, that he is not one, and hence is not in a position to question the validity of the statute on the ground that it denies the right and privileges, which it is claimed, are secured to attorneys.
Points five to eight both inclusive may be disposed of together. Appellant contends that the act contravenes § 20 of the state Constitution which reads: “No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.” An examination of the act discloses that no privileges or immunities are granted except such as are applicable to all citizens or any of them under the circumstances and conditions expressed in the Act. All who are in the same situation are similarly
Point 6 to the effect that the act denies litigants whose claims are within and subject to the provisions of the act due process of law, has been above disposed of and needs no further consideration. Point 7 is to the effect that the act is unconstitutional in that the legislature attempted to create a court with powers to hear and determine cases submitted to it, which court was not contemplated in the adoption of the Constitution; and on the further ground that the act takes away the supervisory powers of the supreme court over all courts of the state. These and objections of a similar nature are easily disposed of by stating in substance what has already been stated, which is that the act does not create a court. It confers upon the conciliation board or the conciliators no judicial power. It simply established a tribunal by providing for the appointment of conciliators whose duties are defined by the act and relate to the settlement and not litigation of claims of the character of those mentioned in the act. The act in no way interferes with the powers of any court. It only requires certain preliminary steps to be taken with reference to the kind of claims mentioned in the act before the powers of the courts are invoked in the enforcement of them.
Under point 8, appellant contends that the conciliation act is not framed in accordance with § 120 of the Constitution, and further, that the procedure is so defective that a plea of res judicata cannot be asserted after the conciliation board has acted. Section 120 provides: “Tribunals of conciliation may be established with such powers and duties as shall be prescribed by law or the powers and duties of such may be conferred upon other courts of justice; but such tribunals or other courts when sitting as such, shall have no power to render judgment to be obligatory on the parties, unless they voluntarily submit their matters of difference and agree to abide the judgment of such tribunals or courts.” The legislature, in accordance with this section, did establish a tribunal of conciliation and by law duly prescribed its duties and powers. Under the provisions of the act it cannot render
The claim of appellant that it would be impossible for a suitor or litigant in a subsequent action to plead a former adjudication upon a claim determined by the board will not be considered; it is not here involved. Appellant has asserted that conditions might arise, whereby if one is compelled to first submit his claim to the conciliation board, that the claim in the meantime might become barred through the expiration of the time within which under' existing law he is required to commence his action. The appellant is in no position to raise that question, as it is not involved in this case. Appellant contends that the right of appeal is denied since there is no right of appeal from the conciliation board. This is effectively answered by again stating that a conciliation board is not a court. The Act is a valid enactment.
The judgment appealed from is affirmed. Respondent is entitled to his costs and disbursements on appeal.
