author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Appellant, v. Mitchell Logan JOHNSON, Respondent.
    No. C8-02-1860.
    Court of Appeals of Minnesota.
    April 22, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for appellant.
    Joseph Margulies, Margulies & Rich-man, P.L.L.C., Minneapolis, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, LANSING, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

The state appeals the district court’s denial of its request for a protective order under the Minnesota Government Data Practices Act, restricting distribution and use of the videotaped statement of an alleged child victim describing respondent’s acts of sexual abuse. Because the district court correctly held that the Rules of Criminal Procedure govern discovery of such a videotape in a criminal case, but erred by rejecting the privacy interests of the subject child as cause for the issuance of a protective order under the rules, we affirm in part and reverse in part.

FACTS

After respondent’s then five-year-old daughter claimed he had touched her numerous times in a sexual way, she participated in a videotaped interview at Cor-nerHouse in which she described how respondent sexually touched her. Respondent was charged with first- and second-degree criminal sexual conduct.

Respondent filed a written demand for discovery. All requested materials were produced, with the exception of the Cor-nerHouse videotape. Prior to releasing the videotape, the state asked respondent’s counsel to sign a stipulation and order providing that a copy of the videotape would be given to defense counsel solely for the purpose of preparing a defense in this case, restricting reproduction of the tape, prohibiting public displays or dissemination of the tape, limiting the people who could view the tape to the defense team, restricting transcripts of the tape to the people who were allowed to view the tape, and providing that upon final disposition of the case, the tape would be returned to the court.

Respondent’s counsel declined to sign the stipulation and order, arguing that under Minn. R.Crim. P. 9.03, subd. 5, a protective order can only be issued if there is particularized evidence that someone entitled to discovery of the videotape intends to misuse the videotape. At a pretrial conference, respondent’s counsel requested unrestricted access to the videotape. The district court ordered briefing on the legal issue of whether the court should issue a protective order.

The state does not dispute that respondent is entitled to discovery of the videotape but argued to the district court that Minn.Stat. § 13.03, subd. 6 (2002) (the Minnesota Data Practices Act), grants special protection to videotapes of child victims and requires, even in the context of discovery in a criminal matter, that the court balance . the need for discovery against the privacy interests of the child, applying the specific factors set out in the act. Respondent argued that discovery in criminal matters is governed by the Minnesota Rules of Criminal Procedure and not the Data Practices Act. Respondent acknowledged the strong public policy favoring protection of the privacy interests of alleged child victims of sexual abuse, but argued that cause for a protective order under Minn. R.Crim. P. 9.03, subd. 5, requires the state to show that respondent intends to misuse the tape. The district court agreed with respondent and denied the state’s request for a protective order. This appeal followed.

ISSUES

1. Is discovery of a videotaped interview of an alleged child sexual-abuse victim by the defense in a criminal case governed by the Minnesota Rules of Criminal Procedure or the Minnesota Data Practices Act?

2. May the privacy interest of an alleged child sexual-abuse victim in a videotaped statement in which the child describes the abuse constitute cause for the issuance of a protective order under Minn. R.Crim. P. 9.03, subd. 5, without a showing of particularized facts about the subject child or a showing of the intent of those entitled to discovery of the videotape under the rules to misuse the tape?

ANALYSIS

I.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr. Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). At oral argument on appeal, the state conceded that the rules of criminal procedure control discovery of the videotape in this case, and agreed with respondent and the district court that the Data Practices Act does not apply to discovery in court cases. We agree.

The Data Practices Act prohibits the subject of data from obtaining a copy of a videotape in which an alleged child victim is talking about the acts of physical or sexual abuse without a court order. Minn. Stat. § 13.821(a) (2002) (referencing Minn. Stat. § 13.03, subd. 6 (2002); Minn.Stat. § 611A.90 (2002), providing for the court order). The court order may include requirements “reasonably necessary for protection of the privacy and best interests of the child” and may significantly limit the use of the videotape. Minn.Stat. § 611.-A90, subd. 2(b). But section 13.821(b) provides that section 13.821(a) does not “limit rights of access pursuant to discovery in a court proceeding.” Minn.Stat. § 13.821(b) (2002). And § 611A.90, subd. 3, states that “[njothing in this section * * * limits a right of a person to obtain access if access is otherwise authorized by law or pursuant to discovery in a court proceeding.” The Data Practices Act does not require a court order for release of a videotape of an alleged child sexual-abuse victim when the request for the videotape is part of discovery in a court proceeding. The district court correctly determined that discovery of, and protective orders for such a videotape in a criminal case are governed by Minn. R.Crim. P. 9.03.

II.

Minn. R.Crim. P. 9.03, subd. 5, provides that

[u]pon a showing of cause, the trial court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate.

The state argues that the district court abused its discretion by rejecting the privacy interest of the child as “cause” for issuance of a protective order. The district court determined that “cause” requires a particularized showing that respondent intends to misuse the videotape or a particularized showing about the subject child. We find no support in the rule or case law for such a restrictive interpretation of the cause requirement. See State v. Schwartz, 447 N.W.2d 422, 427 (Minn.1989) (noting that laboratories concerned about disclosure of trade secrets if DNA evidence was discoverable could seek a protective order under Minn. R.Crim. P. 9.03, subd. 5); see also State v. Cain, 427 N.W.2d 5, 9 (Minn.App.1988) (holding that district court abused its discretion in imposing no restrictions under Minn. R.Crim. P. 9.03, subd. 3, on matter as delicate as adverse psychological examination of child sexual-abuse victims, given strong disagreement over methodology).

The Data Practices Act, though not controlling in this case, strongly expresses the public policy interest in protecting the privacy interests of alleged child victims of sexual abuse by restricting the use and disclosure of videotaped statements of alleged child victims of sexual abuse. We conclude that a concern for the privacy of such children is sufficient to constitute cause under Minn. R.Crim. P. 9.03, subd. 5. If a district court doubts that such concern is warranted in any case, the district court should review the videotape in camera pursuant to Minn. R.Crim. P. 9.03, subd. 6, before determining whether to issue a protective order or establishing the scope of a protective order. In this case, the district court abused its discretion by concluding that the privacy interest of the alleged child victim was insufficient cause for issuing a protective order absent a showing of particularized facts about this child or facts about the intended misuse of the videotape by respondent.

III.

Respondent moved to strike affidavits attached to the state’s second motion for reconsideration, arguing that the affidavits are an attempt to supplement the record on appeal after the district court denied the state’s 'first motion to reconsider. Because our holding in this case makes the motion to strike moot, we deny the motion.

DECISION

The Minnesota Rules of Criminal Procedure, not the Data Practices Act, govern discovery of videotaped statements of alleged child victims of sexual abuse. Concern for the alleged child victim’s privacy is sufficient cause for granting a protective order limiting the use and distribution of such a videotape under Minn. R. Crim P. 9.03, subd. 5.

Affirmed in part, reversed in part, and remanded.

      . CornerHouse is an organization whose employees, under contract to law enforcement, interview alleged victims of abuse on videotape and provide the tape to the local police department, which in turn forwards it to the county attorney for the county’s use in criminal prosecution.


source: Caselaw Access Project

license: Public Domain

text:
    2003 ND 49
    In the Matter of the JUDICIAL VACANCY IN DISTRICT JUDGESHIP NO. 7, with Chambers in Hillsboro, North Dakota, East Central Judicial District.
    No. 20030073.
    Supreme Court of North Dakota.
    March 26, 2003.
   ORDER

[¶ 1] On March 20, 2003, Governor John Hoeven officially notified the Supreme Court that the Honorable Ralph R. Erickson, Judge of the District Court with chambers in Hillsboro, East Central Judicial District, resigned his position March 14, 2003. Judge Erickson’s resignation created a judicial vacancy under Section 27-05-02.1, N.D.C.C.

[¶ 2] Under Section 27-05-02.1, N.D.C.C., this Court is required to review vacancies that occur and determine, within 90 days of receiving notice of a vacancy, whether the office is necessary for effective judicial administration. This Court may, consistent with that determination, order the vacancy be filled or order the vacant office transferred to a judicial district in which an additional judge is necessary, to be filled in that district.

[¶ 3] On December 14, 2001, following review of the testimony on judicial service needs, population and caseload trends, and other criteria identified in North Dakota Supreme Court Administrative Rule 7.2, Section 4, in the Northwest, Southeast and East Central Judicial Districts, this Court transferred a vacant judgeship from the Northwest to the East Central Judicial District. See In the Matter of the Judicial Vacancy in District Judgeship No. 6, with Chambers in Minot, North Dakota, Northwest Judicial District, 2001 ND 199, 637 N.W.2d 3.

[¶ 4] We take judicial notice of the information contained in that file, including information received from the judges and lawyers of the East Central Judicial District. For purposes of the consultation provided for under Section 27-05-02.1, N.D.C.C., the petition received from Presiding Judge Michael O. McGuire and the information from lawyers in the East Central Judicial District in anticipation of the November 27, 2001, hearing held in In the Matter of the Judicial Vacancy in District Judgeship No. 6, 2001 ND 199, 637 N.W.2d 3, are sufficient. See e.g., In the Matter of the Judicial Vacancy in District Judgeship No. 2, with Chambers in Minot, North Dakota, Northwest Judicial District, 2002 ND 12, 638 N.W.2d 540, and In the Matter of the Judicial Vacancy in District Judgeship No. 2, with Chambers in Grand Forks, North Dakota, Northeast Central Judicial District, 2000 ND 35, 606 N.W.2d 907. No further hearings were scheduled regarding this matter.

[¶ 5] In addition, we have received the Review and Update of the North Dakota District Court Weighted Caseload Model Final Report dated February 2003. This report identifies case filings and weighted judicial workloads in the state subsequent to our transfer of the judgeship from the Northwest Judicial District to the East Central Judicial District.

[¶ 6] The current weighted caseload information supports the Court’s prior decision to transfer a vacant judgeship from the Northwest Judicial District to the East Central Judicial District. Nothing in our review suggests the caseload or population in the East Central Judicial District is decreasing. The office is necessary for effective judicial administration in its present location.

[¶ 7] IT IS HEREBY ORDERED, that Judgeship No. 7 at Hillsboro in the East Central Judicial District be filled in the manner provided in N.D.C.C. Chapter 27-25.

[¶ 8] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: SANDSTROM, Justice.

text:
    2003 ND 61
    In the Interest of the Minor Child, Cheyanne THOMPSON. James Dennis Lanners, a/k/a Jim Lanners, individually, Plaintiff and Appellant, and Cheyanne Thompson, a minor child, by and through her Guardian Ad Litem, Plaintiff, v. Diana Johnson, f/k/a Diana Thompson, Douglas Thompson, and Debra Thompson, Defendants and Appellees.
    No. 20020255.
    Supreme Court of North Dakota.
    April 15, 2003.

      Kelly Ann Dillon, Minot, for plaintiff and appellant.
    Frederick J. Hoftnan, Hofman Law Office, Wolf Point, MT, for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] James Dennis Lanners appeals from a Northwest Judicial District Court order denying his motion to amend a child custody judgment. Lanners argues he established a prima facie case under N.D.C.C. § 14-09-06.6(4) and the district court erred in denying him his right to an evidentiary hearing. We reverse and remand the district court’s denial of his motion to amend.

I

[¶ 2] James Lanners and Diana Johnson are the parents of a minor child born in February 1990. Douglas and Debra Thompson are the child’s maternal grandparents and present legal custodians. The maternal grandparents have cared for their granddaughter all of her life and were granted legal custody of the child on August 27, 1998, under a court-approved agreement between the parents and grandparents. On June 28, 2001, Lanners, the father, seeking custody of the child, moved for an amended judgment of the original custody order, a temporary order for custody in his immediate favor, and a contempt order on the grandparents for failing to abide by the visitation order. On August 22, 2001, the district court denied the father’s requested interim relief for temporary custody, finding no existing change of circumstance or danger to the child that would require an immediate transfer of custody. In the same order, the district court held the grandparents in contempt of court for a violation of the original visitation order after they failed to deliver the child to the father on his scheduled weekend. The district court did not impose any penalties on the grandparents for the contempt citation. In their response to the father’s motions, the grandparents argued that North Dakota Century Code section 14-09-06.6, establishing the prima facie case required before a court can modify custody, applies to this case and the father had not met his burden of establishing the material change in circumstances required under the statute. On April 1, 2002, the district court asked the parties to research whether North Dakota Century Code section 14-09-06.6 applies to a case such as this, in which the parent is seeking a modification of custody from a non-parent. On September 7, 2001, Johnson, the mother, filed a cross-motion for custody. On July 15, 2002, the district court, without holding a hearing, concluded that section 14-09-06.6, N.D.C.C., applies to this case, and denied the father’s motion for amended judgment, finding he had not demonstrated a material change in circumstances that compelled a modification of custody.

[¶ 3] The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 4] Lanners, the father, argues the district court erred in denying his motion to amend the custody order. “A district court’s decision whether to change custody is a finding of fact subject to the clearly erroneous standard of review.” Kelly v. Kelly, 2002 ND 37, ¶ 13, 640 N.W.2d 38 (citing Anderson v. Resler, 2000 ND 183, ¶ 8, 618 N.W.2d 480). “A finding of fact is clearly erroneous if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made.” Id. (citing N.D.R. Civ.P. 52(a)).

A

[¶ 5] The factors that must be met before the court may modify an existing child custody order are set forth under N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 6] In a custody modification decision, a court must first consider whether there has been a material change of circumstances since the original custody decree. N.D.C.C. § 14 — 09—06.6(6)(a); Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. If the court concludes there has been a material change in circumstances, it must then decide whether a change in custody is necessary to serve the best interests of the child. N.D.C.C. § 14 — 09—06.6(6)(b).

[¶ 7] This Court has defined a material change in circumstances as important new facts that were unknown at the time of the initial custody decree. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38 (citing Selzler v. Selzler, 2001 ND 138, ¶ 21, 631 N.W.2d 564; Mayo v. Mayo, 2000 ND 204, ¶ 16, 619 N.W.2d 631; In re N.C.C., 2000 ND 129, ¶ 18, 612 N.W.2d 561). “ ‘A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.’ ” Id. (quoting Selzler, at ¶ 21). The relocation of a parent or a change in the child’s preference may constitute a significant change of circumstances. Id. at ¶ 19 (citing Gietzen v. Gietzen, 1998 ND 70, ¶ 10, 575 N.W.2d 924). “Improvements in a non-custodial parent’s situation ‘accompanied by a general decline in the condition of the children with the custodial parent over the same period’ may constitute a significant change in circumstances.” Id. at ¶20 (quoting Hagel v. Hagel, 512 N.W.2d 465, 468 (N.D.1994)). However, an improvement in the noncustodial parent’s life is not, by itself, enough to show a significant change in circumstances. Delzer v. Winn, 491 N.W.2d 741, 744 (N.D.1992).

[¶ 8] In addition to finding a material change in circumstances, a modification of custody must also be found to be necessary in serving the best interests of the child. N.D.C.C. § 14-09-06.6(6)(b). The factors in N.D.C.C. § 14-09-06.2(1) must be applied. Kelly, 2002 ND 37, ¶ 22, 640 N.W.2d 38. Section 14-09-06.2(1) provides:

For the purpose of custody, the best interests and welfare of the child is determined by the court’s consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:
a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.
e. The permanence, as a family unit, of the existing or proposed custodial home.
f. The moral fitness of the parents.
g. The mental and physical health of the parents.
h. The home, school, and community record of the child.
i. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
j. Evidence of domestic violence....
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
. 1. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular child custody dispute.

[¶ 9] “ ‘In a modification proceeding, the best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent.’ ” Kelly, 2002 ND 37, ¶ 22, 640 N.W.2d 38 (quoting Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992)). The party seeking a modification of the custody order bears the burden of proof. N.D.C.C. § 14-09-06.6(8).

B

[¶ 10] Lanners argues he established a prima facie case and therefore the district court erred in denying him his right to an evidentiary hearing. Whether a court is required to provide an evidentiary hearing in a child custody modification case is determined by N.D.C.C. § 14-09-06.6(4):

A party seeking modification of a custody order shall serve and' file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 11] “A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party.” Hilgers v. Hilgers, 2002 ND 173, ¶ 24, 653 N.W.2d 79 (citing O’Neill v. O’Neill, 2000 ND 200, ¶5, 619 N.W.2d 855). “However, where the movant’s allegations are, on their face, insufficient, even if uncontradicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.” Id.

[¶ 12] Lanners presented an affidavit to the district court, making allegations establishing a prima facie case under

N.D.C.C. § 14-09-06.6(4). The affidavit stated:

[T]he Defendants and custodians, Douglas and Debra Thompson have acknowledged that they are no longer able to care or provide for the child and have returned the child to me with the direction and demand that I in turn deliver the child to the child’s mother for custody purposes on July 15, 2001.
The child’s dental care, hygiene, and clothing has [sic] been neglected by the Defendants ... and it is the belief of the affiant that they have also neglected her emotionally.

Lanners’ allegations that the grandparents were transferring physical custody of the child to the child’s mother without seeking a legal modification of the original custody order and that the child was suffering from neglect by the grandparents, if proven true, would be material changes in circumstances. The district court was also presented with an affidavit from the maternal grandmother, Debra Thompson, stating that the child “spends the second half of summers with her mother,” which lends support to Lanners’ allegation that the grandparents may be transferring physical custody of the child from themselves to the child’s mother.

[¶ 13] Lanners also argues that the grandparents moved the child out of state without a court order. Lanners lives in Watertown, South Dakota. He argues that at the time of the judgment, the grandparents lived in Watford City, North Dakota, and in January 2001, they relocated to New Mexico, which, if proven true, could also be a material change. Zeller v. Zeller, 2002 ND 35, ¶4, 640 N.W.2d 53; Olson v. Olson, 361 N.W.2d 249, 251 (1985). The district court was also presented with the fact that the grandparents were held in contempt of court for not following through on a visitation period with Lanners as required under the child custody order. We conclude Lanners has presented a prima facie case for modification of the original child custody order and should be afforded an opportunity to present supporting evidence.

Ill

[¶ 14] We reverse and remand for an evidentiary hearing on Lanners’ motion to amend custody.

[¶ 15] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2003 ND 62
    Brian HENRY, Petitioner and Appellant v. SECURITIES COMMISSIONER FOR the STATE of North Dakota, Respondent and Appellee. Gerald Henry, Petitioner and Appellant v. Securities Commissioner for the State of North Dakota, Respondent and Appellee. Dennis Skarphol, Petitioner and Appellant v. Securities Commissioner for the State of North Dakota, Respondent and Appellee.
    Nos. 20020155-20020157.
    Supreme Court of North Dakota.
    April 15, 2003.

      Michael Ray Hoffman, Bismarck, for petitioners and appellants.
    Matthew Otto Bahrenburg, Special Assistant Attorney General, Securities Commissioner’s Office, Bismarck, for respondent and appellee.
   MARING, Justice.

[¶ 1] Brian Henry, Gerald Henry and Dennis Skarphol appealed from a district court order affirming the Securities Commissioner’s decision denying their motions to dismiss cease and desist orders. We conclude the Commissioner’s decision is not a “final order” under N.D.C.C. § 28-32-42 and is not appealable, and we, therefore, vacate the district court order affirming the Commissioner’s decision and dismiss the appeals.

I

[¶ 2] On April 10, 2001, the Commissioner issued cease and desist orders against the Henrys, Skarphol and others for alleged violations of N.D.C.C. ch. 10-04. The orders directed them to stop selling unregistered securities, to stop defrauding North Dakota investors, and to stop selling securities unless they were registered as dealers. The cease and desist orders stated the Commissioner “expressly reserves the authority to assess civil penalties” for violation of the law and informed the Henrys and Skarphol that they could request hearings if written requests were made within 10 days after receipt of the orders. On April 19, 2001, the Henrys and Skarphol timely requested hearings.

[¶ 3] Section 10-04-16(1), N.D.C.C., which authorizes the Commissioner to issue cease and desist orders, provides that “[s]ubsections 2, 3, and 4 of section 10-04-12 apply to any hearing conducted under this subsection.” Section 10-04-12(2), N.D.C.C. provides:

2. Whenever a person requests a hearing in accordance with this section, the commissioner shall immediately set a date, time, and place for the hearing and shall notify the person requesting the hearing. The date set for the hearing must be within thirty days, but not earlier than fifteen days, after the request for hearing has been made, unless otherwise agreed to by both the commissioner and the person requesting the hearing.

[¶4] The Commissioner did not request an Administrative Law Judge (“ALJ”) to conduct hearings for the Hen-rys and Skarphol until June 22, 2001, more than two months after their requests for hearings were made. On July 11, 2001, the Henrys and Skarphol moved the ALJ to dismiss the administrative actions against them based on the Commissioner’s failure to abide by the time limits set forth in N.D.C.C. § 10-04-12(2). The ALJ denied the motions to dismiss and the Commissioner adopted the ALJ’s decision. The Henrys and Skarphol appealed to the district court, which affirmed the Commissioner’s order. On appeal to this Court, the Henrys and Skarphol contend the administrative actions against them should be dismissed because the Commissioner violated N.D.C.C. § 10-04-12(2) by faffing to set the hearings within 30 days of their requests.

' II

[¶ 5] Before we consider the merits of an appeal, we must have jurisdiction. Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, ¶ 6, 647 N.W.2d 133. Although the parties did not question the appealability of the Commissioner’s order in district court, we must dismiss an appeal on our own motion if we conclude that we do not have jurisdiction. See Johnson v. Rafbevold, 505 N.W.2d 110 (N.D.1993); Regstad v. Steffes, 433 N.W.2d 202, 203 (N.D.1988); Chas. F. Ellis Agency, Inc. v. Berg, 214 N.W.2d 507, 509 (N.D.1974).

[¶ 6] Appealability of the Commissioner’s decisions is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. See In re Juran and Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503. Section 28-32-42(1), N.D.C.C., authorizes appeals to the district court from final orders of an administrative agency, see Gross v. North Dakota Dep’t of Human Services, 2002 ND 161, ¶ 5, 652 N.W.2d 354, and states that “[a]ny party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within 30 days after notice of the order has been given as required by section 28-32-39.” An “order” is defined in N.D.C.C. § 28-32-01(7) as “any agency action of particular applicability which determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.” Section 28-32-42(3)(a), N.D.C.C., emphasizes that “[o]nly final orders are appealable. A procedural order made by an administrative agency while a proceeding is pending before it is not a final order.”

[¶ 7] The requirement of a “final order” for appealability purposes has long been a feature of the Administrative Agencies Practice Act. See Colgate-Palmolive Co. v. Dorgan, 225 N.W.2d 278, 280 (N.D.1974); Danger v. Gray, 73 N.D. 437, 442, 15 N.W.2d 732, 734 (1944). This Court explained in Colgate-Palmolive Co., 225 N.W.2d at 280:

There are many decisions and actions taken in the course of an administrative proceeding which are not subject to review by the courts. A proceeding might be delayed interminably if every ruling on evidence or procedure was the subject of an appeal to the district court. The hearing must proceed to some conclusion in order that the whole of the actions taken on the record accumulated may be reviewed in the course of an appeal. Matters must be ripe for review to avoid squandering judicial time and machinery on abstract or remote problems rather than those that are substantial and present.

Generally, we consider an administrative agency decision to be final if it “terminate[s] the issue,” leaving the agency -with “nothing more to decide.” Ash v. Traynor, 2000 ND 75, ¶3, 609 N.W.2d 96.

[¶ 8] Our view of administrative finality mirrors this Court’s treatment of final orders or judgments under N.D.C.C. § 28-27-02. This Court has said that “only those judgments and decrees which constitute a final determination of the rights of the parties to the action and those orders enumerated in N.D.C.C. § 28-27-02 are appealable.” Mitzel v. Schatz, 167 N.W.2d 519, 524 (N.D.1968). See also Triple Quest, Inc. v. Cleveland Gear Co., Inc., 2001 ND 101, ¶8, 627 N.W.2d 379 (holding order dismissing action without prejudice based on contractual forum selection clause is final and appealable because it terminates the litigation in the plaintiffs chosen forum); Wyatt v. R.D. Werner Co., Inc., 524 N.W.2d 579, 580 (N.D.1994) (holding an order denying a non-party’s motion to intervene is appealable because it effectively concludes the proceedings for intervention and prevents the movant from becoming a party to the original action); Industrial Comm’n of North Dakota v. Kuntz, 486 N.W.2d 249, 251 (N.D.1992) (holding order partially vacating a judgment was not ap-pealable because it “does not provide the ultimate decision” in the case and questions remained before the district court); Ceartin v. Ochs, 479 N.W.2d 863, 865 (N.D.1992) (holding order granting a new trial is not a final appealable order because it “does not terminate the action or any of the claims or parties in the action”); Gillan v. Saffell, 395 N.W.2d 148, 149 (N.D.1986) (holding an order denying a motion for summary judgment is interlocutory and not appealable).

[¶ 9] In line with this reasoning, this Court has consistently held that a denial of a motion to dismiss a cause of action is not final and appealable under N.D.C.C. § 28-27-02. See, e.g., Klindtworth v. Burkett, 477 N.W.2d 176, 178 n. 1 (N.D.1991). In Dimond v. State ex rel. State Bd. of Higher Educ., 1999 ND 228, ¶ 12, 603 N.W.2d 66, we explained:

In Security Nat’l. Bank of Fargo v. Bothne, 56 N.D. 269, 217 N.W. 148, 149 (1927), this Court held the denial of a motion to dismiss is a non-appealable interlocutory order. We also specifically have held the denial of a motion to dismiss for lack of jurisdiction is non-appealable. Blue Arm v. Volk, 254 N.W.2d 427, 428 (N.D.1977); Grenz v. O’Rourke, 235 N.W.2d 881, 884 (N.D.1975). In addition, our court previously considered N.D.C.C. § 28-27-02(5), the very subsection cited by the Board, explicitly concluding the denial of a motion to dismiss for lack of jurisdiction does not involve the merits of a claim. Schaff v. Kennelly, 69 N.W.2d 777, 779-80 (N.D.1955). Rather the denial of a motion to dismiss, like the denial of a motion for summary judgment, is “merely interlocutory and, leaving the case pending for trial, it decides nothing, except that the parties may proceed with the case.” Rude v. Letnes, 154 N.W. 2d 380, 381(N.D.1967).

See also Imperial Oil of North Dakota v. Hanson, 510 N.W.2d 598, 601 (N.D.1994) (noting “[e]ven a jurisdictional reason does not normally warrant an intermediate appeal”); Newman v. Hjelle, 133 N.W.2d 549, 554 (N.D.1965) (holding a decision denying a motion to dismiss an action for lack of personal and subject matter jurisdiction is not appealable); Beresina Sch. Dist. No. 23 v. Steinwandt, 60 N.D. 458, 459, 235 N.W. 348 (1931) (noting an order refusing to dismiss an action for want of jurisdiction is not appealable).

[¶ 10] The Henrys and Skarphol argue the Commissioner “lost jurisdiction over them” by failing to set their hearings within the time limits specified in N.D.C.C. § 10-04-12(2), and “they should not be required to defend an untimely and, perhaps costly, litigation against them.” We will assume, for purposes of argument only, that N.D.C.C. § 10-04-12(2) implicates the Commissioner’s jurisdiction to proceed. However, the Henrys and Skar-phol have not advanced any reasons why we should treat the appealability of orders affecting the jurisdiction of an administrative agency under N.D.C.C. § 28-32-42(3)(a) differently than we treat the ap-pealability of orders affecting the jurisdiction of a court under N.D.C.C. § 28-27-02. The Henrys and Skarphol’s reliance on Bland v. Commission on Med. Competency, 557 N.W.2d 379 (N.D.1996), is misplaced. In Bland, 557 N.W.2d at 383, we held that an order temporarily suspending a physician’s license under N.D.C.C. § 43-17-32.1 was not a “final order” appealable under N.D.C.C. ch. 28-32, but concluded the order was made appealable by N.D.C.C. § 43-17-32.1 because the statute specifically referred to appeals to the district court. Unlike the statute at issue in Bland, N.D.C.C. § 10-04-12 does not expressly confer appellate jurisdiction to either the district court or this Court.

[¶ 11] We conclude the Commissioner’s order denying the motions to dismiss is interlocutory and is not a “final order” under N.D.C.C. § 28-32-42(3)(a). The order “decides nothing, except that the parties may proceed with the case.” Rude v. Letnes, 154 N.W.2d 380, 381 (N.D.1967). Nonappealable orders may be reviewed upon an appeal from the Commissioner’s final order. See, e.g., Berg v. Dakota Boys Ranch Ass’n, 2001 ND 122, ¶ 6, 629 N.W.2d 563; In re Ketterling, 515 N.W.2d 158, 161 (N.D.1994); Newman, 133 N.W.2d at 554. We decline the Commissioner’s invitation to nevertheless review the merits of the appeal. The parties have not requested that we issue a supervisory writ, and, in any event, the requirements for a supervisory writ are not present in this case. Compare Dimond, 1999 ND 228, ¶ 19, 603 N.W.2d 66. Thus, any views we might express on the merits would be simply advisory and nonbinding. See In re McCabe, 5 N.D. 422, 425, 67 N.W. 143, 144 (1896). Because the Commissioner’s order is not appealable, neither the district court nor this Court has jurisdiction to review it.

Ill

[¶ 12] We vacate the district court order affirming the Commissioner’s decision and dismiss the appeals.

[¶ 13] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ., concur.

[¶ 14] The Honorable RALPH ROBERT ERICKSON, D.J., sitting in place of SANDSTROM, J., disqualified. Judge ERICKSON resigned effective March 14, 2003, and did not participate in this decision.

      . The 58th Legislative Assembly passed, and the Governor recently signed, S.B. 2084, which amends N.D.C.C. § 10-04-16. Section 12 of the bill amends N.D.C.C. § 10-04-16(1) to delete the applicability of N.D.C.C. § 10-04-12(2) "to any hearing conducted under this subsection,” and adds the language, "[i]f a request for hearing is made under this subsection, the commissioner shall schedule a hearing within a reasonable time.”

      . This Court has indicated, unless a statute imposing a time limit declares that the time limit is jurisdictional, we will not treat the time limit as affecting the jurisdiction of a court or administrative agency. See In Interest of P.L.P., 556 N.W.2d 657, 659 (N.D.1996); Greenwood v. Moore, 545 N.W.2d 790, 795-96 (N.D.1996); In Interest of Nyflot, 340 N.W.2d 178, 183 (N.D.1983).


author: SATHRE, Judge.

text:
    August E. DARKENWALD, Plaintiff and Respondent, v. Hattie M. DARKENWALD, Defendant and Appellant.
    No. 7445.
    Supreme Court of North Dakota.
    Sept. 22, 1954.

      Roy A. Ployhar, Valley City, for plaintiff and respondent.
    Ilvedson, Pringle & Herigstad, Minot, for defendant and appellant.
   SATHRE, Judge.

The plaintiff August E. Darkenwald brought this action against the defendant Hattie M. Darkenwald for a divorce. The complaint alleges that on or about April 28, 1950 and more than 2 years prior to the commencement of the action the defendant disregarding her marriage vows wilfully and without cause deserted and abandoned the plaintiff and ever since has and still continues wilfully and without cause to desert and abandon the plaintiff and live separate and apart from him without any sufficient cause or reason, and against his will and without his consent. Judgment is demanded for a decree of divorce from the defendant. The defendant answers by way of counterclaim or cross complaint, and after admitting certain facts alleges that she left the plaintiff because she was afraid of him on account of his behavior towards her, his threats of bodily injury to her and of his cruel and inhuman treatment towards her; the answer further alleges that plaintiff is a person with a violent temper; that he is dictatorial and that it was impossible for the defendant to reason with him, and that he would never consult her about family affairs; that he struck her and twisted her arm and committed other similar assaults upon her at various times; that in March 1949 he struck her on her nose causing it to be black and blue; and that he has threaténed to strike her at various other times.

The defendant then demands judgment that plaintiff’s action for divorce be dismissed and that she be granted a decree of separation from bed and board forever from the plaintiff and that the court grant her support and maintenance in the sum $125 per month, and that a $6,000 paid up life insurance policy be left with her as the beneficiary.

The case was tried at Valley City, North Dakota before the Honorable John Sad, Judge of the District Court, Barnes County. The trial court found that the defendant had deserted the plaintiff and that the plaintiff was entitled to a divorce. The trial court found further that the plaintiff should pay to the defendant the sum of $1,160 as alimony and the sum of $200 as attorneys’ fees a total of $1,360, less the sum of $50 paid by the plaintiff to defendant’s attorneys at the time of the trial of the action; that the plaintiff should pay said sum in annual payments of $400 the first payment to be made January 2, 1954, the second payment of $400 January 2, 1955, the third payment of $400 January 2, 1956 and the balance of $110 on January 2, 1957, without interest. That to secure payment of said sums plaintiff should retain the defendant as beneficiary of his life insurance in the sum of at least $3,000 until said payments were made in full, and might thereafter change the beneficiary if he so desires.

The trial court further found that each of the parties should be entitled to retain as their own property any and all other property now in their name and possession including all of their personal effects, clothing and other belongings and that this should constitute a final and conclusive property settlement between the parties hereto.

The defendant appealed from the judgment and demanded a trial de novo in this court.

Defendant contends first that the trial court erred in granting the plaintiff a divorce and that it is clearly established by the evidence that the defendant left the plaintiff because of his cruelty and conduct towards her, and that therefore the fact that she left him was not desertion under section 14-0506 NDRC 1943.

There is very little dispute in the evidence and the facts as established by the record are substantially as follows:

The plaintiff and defendant were married at Moorhead, Minnesota on August 9, 1924 and lived together as husband and wife until April 29, 1950 when defendant left plaintiff and thereafter lived separate and apart from him. One son was born to this union who is now of age and married. It is undisputed that ever since their marriage both plaintiff and defendant have been engaged in teaching in various towns in the State of North Dakota, most of the time teaching in the same schools. That at the time of the alleged desertion of the defendant the parties were residing at Galesburg, North Dakota where the plaintiff was engaged as principal of schools. On the evening of April 28, 1950 plaintiff and defendant attended a high school play at Galesburg, N. Dak. Plaintiff testified that on the morning of April 29th, the defendant without any previous notice or warning took her suitcases from a closet and requested the plaintiff to take her to Fargo stating that she was going to California. Plaintiff took her to Fargo and said that he was dumfounded because he could not understand why she was leaving and going to California. There was very little conversation between the parties on their way tp Fargo. Plaintiff left the defendant at the Graver Hotel and thereafter returned to Galesburg where he continued to teach and finished his term of school. The defendant left for California and plaintiff did not see her until August 1950 when he happened to see her in the City of Fargo. The parties had lived in a rented house at Galesburg and the plaintiff kept the house and continued to teach in Galesburg the following year. The defendant after returning from California accepted a teaching contract at Crosby, North Dakota in the fall of 1950. The plaintiff contends that he asked her to return to him at Gales-burg and live with him, but that she refused so to do. Plaintiff and defendant saw each other occasionally in Fargo during Christmas vacation and plaintiff said he asked her to return and live with him but she always refused; that they have not lived together as husband and wife since April 29, 1950.

With reference to their financial affairs the parties for some time had a joint banking account. The main difficulties between the parties seem to have arisen over the fact that for some time during their married life the plaintiff made monthly payments for support of his ailing parents in the sum of $5 to $10 a month until their death, amounting in all to about $700. Defendant claims that the plaintiff refused to make contributions for the support of her widowed mother. Plaintiff claims that her widowed mother was in no need of support, that she had a considerable amount of money and that at no time was she in need of assistance. Some years prior to the commencement of this action the parties decided to have separate accounts, and they made a division of their money and bonds, which they owned jointly. From the evidence it would appear that in the division of the bonds which they owned jointly, approximately $700 or $750 maturity value, were turned over to the defendant and that a like amount was turned over to the plaintiff. During the two or three years prior to the commencement of this action the plaintiff was receiving as salary for teaching from $3,200 to $3,500 and the defendant was receiving from $2,800 to $2,900 per school year. As stated they then had separate bank accounts. The defendant claims that the plaintiff never bought any clothes for her and that she had to buy her own clothes and that she also used some of her own money with which to pay for the groceries and other things that were needed in their household.

When they first began to teach, neither party had a college degree. Defendant claims that she helped the plaintiff with money thus enabling him to go to college so as to obtain his B. A. degree; that he promised to repay her and that he would also assist her so that she could take time off and secure her degree, but that he never did and that he still owes her for money that she advanced him when he was studying to secure his degree.

There also seems to have been some disagreement between them in reference to the purchase of automobiles. At first they had a second hand Ford car; he then traded it for a second hand Chevrolet. Thereafter he sold the Chevrolet and bought an Oldsmobile, against her wish, but she said that she finally consented to it.

With references to their finances both parties have helped their only child, a son, with modest sums of money from time to time which seems to have met with the approval of both.

Neither party has much property or money. Defendant testified that she has about $300 on checking account and that she has $800 which she saved from her earnings and which is held jointly by her and her son to be used to defray her funeral expenses. The parties shipped their furniture to their son at Virginia, Minnesota and it was there at the time of the trial, except an electric stove and a refrigerator which the plaintiff sold at Fargo. The plaintiff has no property except a 1949 Oldsmobile car. They had a house trailer which he sold for $495 to which he added enough to make $600 which sum he gave to the defendant. Before he bought the Oldsmobile he sold the Chevrolet car for $600 and kept the money, and that was the reason he gave the defendant the proceeds of the sale of the house trailer. He stated that in addition to the money from the house trailer sale which defendant received she also received $400 from him in different amounts at different times after April 1950.

Mrs. Raymond Olstad, a witness for plaintiff testified that she lived in Gales-burg while the plaintiff and defendant were living there; that she was the clerk of the school board while the plaintiff was teaching in Galesburg, and that she became acquainted with both plaintiff and defendant and that the defendant left Galesburg in April 1950; that the last time she saw the defendant was the evening of April 28, 1950 at a high school play, and that the defendant left the day after the high school play and never came back to Galesburg thereafter; that the plaintiff finished teaching the school term and continued to teach there the following year; that he lived alone and that the defendant never returned; the witness never saw any evidence of any trouble between plaintiff and defendant. Her husband, Raymond Ol-stad, testified that he was well acquainted with the plaintiff and defendant, and that he and his wife were close neighbors to them; that they visited back and forth and that he never noticed or knew of any trouble between plaintiff and defendant; that he and his wife were at the high school play at Galesburg on April 28, 1950, and that plaintiff and defendant' were there. He never saw the defendant in Galesburg after the high school play; that plaintiff finished the balance of the school term and continued to teach there the following year; that defendant never returned to Galesburg and that plaintiff lived there alone during all that time.

The defendant admits that she left the plaintiff on April 29, 1950, as alleged in the complaint. She claims however that she is afraid to return to him because of his conduct toward her. She claims that on many occasions he called her vile and dirty names; that he has made excessive demands on her for the marital relation; that he twisted her arms and her legs and that he once struck her on the nose and committed other acts of violence against her.

The plaintiff admitted that he “might have been a little rough a couple of times”, but there is no evidence however that she at any time made any complaint to any one of such conduct on the part of the plaintiff, and- she could not remember any specific instance of such conduct. She admitted that plaintiff had asked her to come back, but that she refused because she was afraid of him.

No witnesses other than the defendant testified as to any acts of cruelty by the plaintiff. An affidavit executed by one Julia R. Jones of Glenfield was stipulated into the record by the counsel for the parties. This affiant states that from September 1, 1945 to the end of the school year 1946 she heard Mr. Darkenwald often use vile and profane and abusive language toward the defendant after which he often left the house slamming the door; that he would take his car and leave Mrs. Darken-wald week ends and once was gone nearly the whole Christmas vacation. The incidents referred to in this affidavit seem to have occurred during the school year from September 1945 to the end of the school year 1946. This would be more than 3 years prior to the time that the defendant left the plaintiff.

Where an appeal is taken from a judgment in a divorce case and a trial de novo is demanded it becomes necessary to review all of the evidence including the conduct of the parties which it is claimed constitute grounds for divorce. Mattson v. Mattson, N.D., 56 N.W.2d 764; Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519; Henry v. Henry, 77 N.D. 845, 46 N.W.2d 701. It is conceded by the defendant that she left the plaintiff on April 29, 1950 and that since that time they have not lived together as husband and wife, and she still refuses to live with him as his wife. Defendant contends that under subdivision 3, Section 14-0506 NDRC 1943, the plaintiff was guilty of cruelty so as to justify the defendant to leave him and refuse to return. Said subdivision 3 reads as follows:

“Departure or absence of one party from the family dwelling place caused by the cruelty or by threats of bodily harm from which danger reasonably would be apprehended from the other is not desertion by the absent party”.

With reference to defendant’s complaint that the plaintiff had twisted her arms and legs, he admitted that he “might have been a little rough a couple of times”. From the testimony of the defendant it appears that these episodes occurred at times when she refused to have sexual relations with him. There is no evidence in the record however that such relations would be injurious to defendant’s health. Six years before she left the plaintiff she had consulted Dr. Frank Darrow of Fargo about her nervous condition and he told her that he did not know whether to send her to a sanitarium or to the west coast. He gave her some medicine for her nerves that gave her relief and she taught school for three years thereafter.

As to her reason for consulting Dr. Darrow she was asked this question:

“Q. Did he give you any nerve sedative? A. Well, yes because that was the time we had this trouble about my mother. He gave me one nerve medicine and then another. My mother had died. He finally gave me one that did help me some and I did go teaching and I made up my mind that I was going to try not to lose my mind.”

She was further asked whether she left Galesburg in 1950 upon the advice of Dr. Darrow to which she replied:

“Dr. Darrow had nothing to do with it, I just couldn’t take it any longer.”

It appears from defendant’s testimony that she had developed a resentment and dislike for the plaintiff for several years because of plaintiff’s objection to making contributions to defendant’s mother, and this resentment had become an obsession to such an extent that she refused to have marital relations with him.

The plaintiff testified that he loved his wife and that he loved her as much as when he married her and that he asked her many times to come back and live with him. The last time that he asked her to come back and live with him was in Fargo when they were “trying to settle things up.” And he then told her “lets drop the whole thing”. She said she would come back and live with him if she wouldn’t have to live with him as man and wife. She said she would live in the same house with him but not as man and wife. To which he replied that was not the way to live together.

If as the testimony shows the defendant was willing to associate with the plaintiff, live in the same house with him, it cannot be said she was in fear of any mistreatment by him.

After the defendant had left the plaintiff he changed the beneficiary of a paid up insurance policy which he carried and made his son the beneficiary in place of his wife. In referring to this matter he made the following statement:

“I think that she wanted the insurance policy but I think right in her own mind she would like to come back and still doesn’t want to come back. I think that we are at the age where we should be living together but it just doesn’t come to that.”

He also stated that he would make the defendant the beneficiary if she would come back and live with him.

After considering all of the evidence we do not believe it is sufficient to establish that defendant suffered such cruel treatment at the hands of the plaintiff that under subdivision 3 section 14-0506 her refusal to live with him was justified. On the other hand if the defendant without sufficient legal grounds left the plaintiff and for a year or more refused to resume marital cohabitation with him, her conduct constituted desertion under subdivision 1 of said section 14-0506 which provides:

“Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert:
“1. Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion”.

The trial court saw the parties, heard their testimony, observed their conduct and general demeanor. He found from all of the evidence that the defendant had deserted the plaintiff and that plaintiff was entitled to a decree of divorce. Where, as in this case, upon a trial anew in this court, the findings of the trial court determine questions of fact, such findings are entitled to appreciable weight. After a careful consideration of the entire record we are of the opinion that the findings of the trial court should not be disturbed, and that the plaintiff is entitled to a decree of divorce. It follows therefore that defendant having deserted the plaintiff she is not entitled to a decree of separation from bed and board.

Defendant next contends that the property settlement made and the alimony allowed by the trial court were unjust and inequitable. As the evidence shows, neither party has much money or property, in fact, the defendant appears to have fully as much as the plaintiff. At the time of the trial plaintiff was of the age of 54 years and the defendant was of the age of 51 years. Both are teachers in the public schools of the state. During the last school year before the trial of the action plaintiff’s salary was $3,500 and defendant’s salary was $2,900. Plaintiff has no financial resources other than the salary he receives as a teacher. He is not in the best of health. His sense of hearing is somewhat impaired and he is suffering from a stomach ailment. The judgment of the district court requires him to pay the defendant $1,160 and $200 attorneys’ fees. Considering the earning capacity of the plaintiff and his general health we are of the opinion that the allowance made by the district court was fair and equitable. The defendant stated that her health had been good the last year and was good at the time of the trial. As a teacher she is capable of earning $2,900 to $3,000 per year. Under all of the circumstances and the evidence we conclude that the judgment of the trial court was correct and it is affirmed.

MORRIS, C. J., and BURKE, GRIM-SON and JOHNSON, JJ., concur.


author: MORRIS, Chief Justice.

text:
    MORTON COUNTY, a public corporation, Plaintiff and Respondent, v. Lawrence M. TAVIS and A. J. Jensen, State Commissioner of Insurance and Administrator of the State Bonding Fund of the State of North Dakota, Defendants, and A. J. Jensen, State Commissioner of Insurance and Administrator of the State Bonding Fund of the State of North Dakota, Defendant and Appellant. MORTON COUNTY, a public corporation, Plaintiff and Respondent, v. Lawrence M. TAVIS, Bernard M. Porter, and A. J. Jensen, State Commissioner of Insurance and Administrator of the State Bonding Fund of the State of North Dakota, Defendants, and A. J. Jensen, State Commissioner of Insurance and Administrator of the State Bonding Fund of the State of North Dakota, Defendant and Appellant.
    Nos. 7465, 7464.
    Supreme Court of North Dakota.
    Sept. 30, 1954.

      Paul Benson, Atty. Gen., T. H. H. Thore-sen, Asst. Atty. Gen., Frank J. Kosanda, Sp. Asst. Atty. Gen., for defendant and appellant.
    C. J. Schauss, State’s Atty., Kelsch & Scanlon, Sp. Counsel, Mandan, for plaintiff and respondent.
   MORRIS, Chief Justice.

On March 8, 1954, Morton County recovered a judgment against Lawrence M. Tavis and A. J. Jensen, State Commissioner of Insurance and administrator of the State Bonding Fund of the State of North Dakota, upon two causes of action for principal, interest, and costs amounting to $25,500.61, and upon the same date recovered another judgment in a separate suit against the same defendants upon six causes of action for $120,243.55. In the second suit one Bernard M. Porter was named as a defendant but was never served. Tavis defaulted in both actions. From the judgments so entered separate appeals have been taken. The cases were by stipulation consolidated for trial and tried together in the district court. They were briefed and argued together in this court. Since the facts in these cases are similar and the controlling principles of law are identical, we consider both appeals in one opinion.

In May 1931, Lawrence M. Tavis became treasurer of Morton County and Bernard M. Porter became his deputy. They alternated in holding these respective offices during various subsequent periods, one being treasurer and the other his deputy. During that time the county treasurer of Morton County was bonded by the State Bonding Fund under the provisions of the State Bonding Fund Law which was originally Chapter 158 SLND 1919 and is now Chapter 26-23 NDRC 1943. During the period from May 1931 to July 1952 Tavis and Porter conspired with each other to embezzle and did embezzle from Morton County the sum of $209,691.58 during their respective terms as county treasurer as follows: May 1931 to May 1933, Tavis treasurer, Porter deputy, $13,807.42; May 1933 to May 1935, Porter treasurer, Tavis deputy, $18,166.08; May 1935 to May 1937, Porter treasurer, Tavis deputy, $1,969.88; May 1937 to May 1939, Tavis treasurer, Porter deputy, $4,-181.61; May 1939 to May 1941, Tavis treasurer, Porter deputy, $6,057.41; May 1941 to May 1943, Porter treasurer, Tavis deputy, $68,984.98; May 1943 to May 1945, Tavis treasurer alone, $16,155; May 1945 to May 1947, Tavis treasurer alone, $11,062.35; May 1947 to May 1949, Tavis treasurer alone, $56,709.62; May 1949 to May 1951, Tavis treasurer alone, $12,597.23. The above embezzlements are established by stipulation of the parties.

The embezzlements of Tavis and Porter were not discovered by the board of county commissioners of Morton County until on or about July 8, 1952. Claims representing the above amounts were filed with the defendant state commissioner of insurance within sixty days after the discovery of the embezzlements. The commissioner admitted liability upon all claims that were less than six years old and paid to Morton County the amount thereof in the sum of $72,526.-93 but refused to pay the balance of $137,-164.65. To recover this amount these actions were brought on June 11, 1953. The insurance commissioner answered, alleging that the causes of action set forth in the complaint did not accrue within six years before the commencement of the actions. The plaintiff replied, setting up an estoppel challenging the right of the defendant to plead and rely upon the six-year statute of limitations as a defense, the challenge being based upon the ground that Tavis and Porter, as public employees, fraudulently concealed, secreted, and suppressed the evidence of their defalcations to avoid detection. Thus there were presented to the trial court two issues. The first is: Does the six-year statute of limitations, Section 28-0116 NDRC 1943, -bar recovery from the State Bonding Fund for an embezzlement that occurred more than six years prior to the commencement of an action against the state commissioner of insurance? The second issue is: If the statute does apply, is the defendant insurance commissioner es-topped by the facts in this case from asserting the statute of limitations as a defense?

It is suggested that this suit may be considered an action for relief on the ground of fraud and is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. All of these matters come within the purview of Section 28-0116 NDRC 1943, the applicable subdivisions of which provide:

“The following actions must be commenced within six years after the cause of action has accrued:
"1. An action upon a contract, obligation, or liability, express or implied, subject to the provisions of section 28-0115;
“2. An action upon a liability created by statute, other than a penalty or forfeiture, when not otherwise expressly provided; * * *
“6. An action for relief on , the ground of fraud in all cases both at law and in equity, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; * *

The first position of the appellant is that the obligation of the State Bonding Fund involved in this case, although based upon a statute, is nevertheless contractual, a view that is supported by Clark County v. Bergstresser, 63 S.D. 121, 257 N.W. 44. The appellant further argues that if the obligation of the State Bonding Fund is not contractual, then it is an action upon a liability created by statute which comes within subdivision 2 of Section 28-0116 NDRC 1943 and is, in any event, subject to the general statutory limitation of six years. We need not concern ourselves with whether the obligation of the State Bonding Fund is contractual or statutory, for the same period of limitation applies to either. A collection of cases dealing with these two theories of liability may be found in the annotation 32 A.L.R.2d 1240. The real question here is whether any of the provisions of the general six-year statute of limitations, Section 28-0116, apply.

The respondent contends that Section 28-0116 'NDRC 1943 is a general statute of limitations ; that the bonding fund law contains its own special statute of limitations which applies to all actions coming within its provisions to the exclusion of the general statute, Section 28-0116. To that contention we now devote our attention.

The State Bonding Fund was established by Chapter 62 SLND 1915. Chapter 158 SLND 1919, while purporting to amend and reenact the 1915 law, is in fact a comprehensive and complete statute establishing a State Bonding Fund under the management of the commissioner of insurance. The latter act is now Chapter 26-23 NDRC 1943, the pertinent sections of which provide:

26-2308. “The public employees of the state and each political subdivision thereof, as the case may be, shall be insured in the fund according to the provisions of this chapter automatically and without the issuance of any bond and without further action by the commissioner. The provisions of this chapter and of any statute requiring a bond shall constitute the bond of each and every public employee for the purpose of any law of this state requiring such bond and shall constitute the entire contract between the fund and the state or its political subdivisions, respectively, as the obligee in any such bond.”
26-2309. “The condition of the bond arising under the provisions of this chapter shall be that the public employee, as principal, faithfully and impartially shall discharge and perform the duties of his office or employment, including such duties as are or may be imposed upon him by law, and shall render a true account of all moneys and property of every kind that shall come into his hands as such public employee, and shall pay over and deliver the same according to law.”
26-2310. “Immediately upon, and in no event later than sixty days after, the discovery of any default or wrongful act on the part of any public employee for which the fund is or may become liable, the state auditor, county auditor, city auditor, village clerk,, township clerk, or school district clerk, or the treasurer of the state or subdivision thereof, if the defaulting officer is the auditor or clerk of the state or subdivision, and any other officer having supervision of a defaulting public employee, shall file a claim with the commissioner against the fund. Any person injured by such default or wrongful act, if he intends to hold the fund liable therefor, must present his claim to the commissioner within sixty days after the discovery of such default or wrongful act. If a claim is not filed within the time limited by this section, such claim is waived. A claim filed under the provisions of this section shall contain an abstract of the facts upon which it is based and shall be verified by the claimant or by someone in its or his behalf, and, together with all papers relating thereto, shall remain on file with the commissioner.”
26-2313. “No action shall be maintained against the fund upon any claim whatever until the claim first has been presented for allowance as provided in this chapter and the allowance of such claim has been refused. The neglect or refusal of the state bonding fund board to act upon any claim for sixty days after its presentation for allowance shall be deemed a refusal of the claim. The filing and disallowance of the claim must be alleged in the complaint in any action brought thereon against the fund.”
26-2314. “No action shall be maintained against the fund upon any claim whatever unless such action is commenced within one year after the filing of the claim with the commissioner.”

The requirement that a claim against the State Bonding Fund shall be filed with the commissioner of insurance not later than sixty days after the discovery of any default or wrongful act on the part of the public officer or employee is a condition precedent to the right to maintain an action against the bonding fund. Ward County v. Balerud, 72 N.D. 173, 5 N.W.2d 425; Felch v. Olsness, 53 N.D. 18, 204 N.W. 848; Madden v. Dunbar, 52 N.D. 65, 201 N.W. 988.

Where a statute dealing conclusively with a special subject conflicts with .a prior and more general enactment, the later and more specific statute must prevail. Adams County v. Smith, 74 N.D. 621, 23 N.W.2d 873. See also State ex rel. Bismarck Tribune v. Steen, 60 N.D. 627, 236 N.W. 251; Village of Dazey v. Barnes County, 70 N.D. 752, 298 N.W. 13; People v. Breyer, 139 Cal.App. 547, 34 P.2d 1065; Rosenquist v. O’Neil & Preston, 187 Minn. 375, 245 N.W. 621; Townsend v. Little, 109 U.S. 504, 3 S.Ct. 357, 27 L.Ed. 1012. Section 28-0116 NDRC 1943 is a general statute of limitations. Chapter 26-23 deals with one specific subject, that of the State Bonding Fund. That statute is limited in scope and effectiveness to that subject with which it deals exclusively and comprehensively. Among its provisions ar.e Section 26-2310 NDRC 1943, limiting claims against the bonding fund to those filed within sixty days after discovery, and Section 26-2314 NDRC 1943, limiting actions against the fund to those commenced within one year after the filing of the complaint. While the wording of these statutes is mainly prohibitive, the statutes are impliedly permissive and thereunder claims against the bonding fund may be filed within sixty days after discovery and actions thereon may be commenced within one year after filing.

In Miller v. Turner, 64 N.D. 463, 253 N.W. 437, syllabus 3, it is said:

“Chapter 158, Sess.Laws 1919, relating to the state bonding fund, is a special statute of limitations applying to the state bonding fund only. It is-a. complete act in itself, clear and \mam-biguous. It does not make any exceptions, and it applies to all persons including those under disabilities.”

While that case does not deal with the six-year statute of limitations, it does deal with another general statute extending the period of limitation for persons under certain disabilities, Section 28-0125 NDRC 1943. It would seem that if the bonding fund act is exclusive as against the provisions of the general statute extending the period of limitation because of disabilities, it is also exclusive as to the general statute prescribing limitations.

Our search for a statute in another jurisdiction comparable to our State Bonding Fund Law has been unrewarding and consequently we have been able to find no authority beyond our own court that is directly in point. However, a number of cases supporting the view that a special limitation statute expressly covering particular officers or their bonds Or sureties or expressly covering particular actions against public officers and their sureties is controlling rather than a general statute of limitation, regardless of whether the liability involved is contractual or statutory, are cited in an annotation, 18 A.L.R. 2d 1213.

When the legislature enacted Chapter 158 SLND 1919, it set forth-the purposes of the act in the title, wherein it is said to be an act “Providing for the Payment of Premiums and of Indemnities; Providing for Presentation and Allowance of Claims and Fixing Limitations of Actions Thereon; * * The legislature fixed the limitations of actions on claims without regard to the general statute of limitations. In doing so, it emphasized “the discovery of any default or wrongful act”. It imposed no duty on the bond claimant prior to discovery but the duty was placed upon the claimant “Immediately upon, and in no event later than sixty days after, the discovery * * * ” to file a claim. Thus upon discovery prompt action was required. A limitation was then further provided requiring that suit he brought upon the claim within one year after filing. It is clear to us that these limitations and conditions are all the restraints that the legislature intended to impose upon the right to recover for any default or wrongful act on the part of any public employee for -which the fund might become liable. To hold that the general statute of limitations would also apply to a claim even though it had not been discovered would lead in many instances to confusion and complications. The terms of the bonding fund act with respect to discovery and the time of filing the claim and bringing suit thereon are clear. We hold that they are independent of and unaffected by the general statute of limitations.

The commissioner takes another defensive position not based upon the statute of limitations. He points to Section 11-1421 NDRC 1943 which requires the outgoing county treasurer to make a full and complete settlement with the board of county commissioners and to deliver up all books, papers, moneys, and other property pertaining to his office to his successor and to take a receipt therefor. During the last term of office of Mr. Tavis he was bonded in the sum of $75,000. It is argued that when he took over the office from Porter he certified that all records were in order and receipted therefor and thus assumed and became responsible for all; defalcations of -both' himself, árid Porter prior- to his final assumption of office and that the-total recovery must be limited to the amount of the last bond. The brief does not point out wherein the record contains facts to support this contention, but if we assume that Tavis receipted to his predecessor because the statute requires it and for that reason consider the point, the appellant’s position in this respect still cannot be sustained. Where an officer succeeds himself and a shortage in the funds is shown to exist in a certain term, it is presumed that the shortage occurred during that term. But the presumption is not a strong one and is readily overcome by proof of a shortage during the prior term. Dickinson v. White, 25 N.D. 523, 143 N.W. 754, 49 L.R.A.,N.S., 362. See also Custer County v. Tunley, 13 S.D. 7, 82 N.W. 84, 79 Am.St.Rep. 870.

In Independent School District v. Hubbard, 110 Iowa 58, 81 N.W. 241, 243, 80 Am.St.Rep. 271, it is said of settlements similar to the one prescribed by our statute that:

“Tírese settlements and the production of funds are intended for the security and protection of the municipalities by insuring punctuality and responsibility of public officials, and form no part of the contract with the surety.”

In the same case we find this pertinent quotation from Hart v. U. S., 95 U.S. 316, 24 L.Ed. 479:

“ ‘The government is not responsible for the laches or the wrongful acts of its officers. * * * Every surety upon an official bond to the government is presumed to enter into his contract with full knowledge of this principle of law, and to consent to be dealt with accordingly. The government enters into no contract with him that its officers shall perform their duties. A government may be the loser by the negligence of its officers, but it never becomes bound to others for the consequences of such neglect, unless it be by express agreement to that effect.’ ”

No authority has been cited and our search has revealed none supporting <.the appellant’s contention that the surety ^ori a -bond of a defaulting treasurer may be released because a successor falsely receipts for an amount sufficient to include and cover the default of the outgoing treasurer. In this case the embezzlements during the respective terms of Tavis and Porter are definitely established by stipulation. They are separate defaults constituting individual liabilities on the part of the principal and the surety for their respective terms. The situation is not altered by the fact that the State Bonding Fund was the surety during the period covering all the defaults. The liability of the surety is not affected by false receipts issued to the defaulting treasurer by his successor whether that successor be the defaulting treasurer himself or another individual.

We have reached the conclusion that the defendant insurance commissioner may not avail himself of the defense of any of the provisions of the six-year general statute of limitations, Section 28-0116 NDRC 1943, and that the defaults of Tavis and Porter during their prior terms are not merged in the default of Tavis during his final term. The two judgments separately appealed from and considered herein are affirmed.

BURKE, SATHRE, JOHNSON and CRIMSON, JJ., concur.


author: GRIMSON, Judge.

text:
    J. J. McGURREN, both Individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. The CITY OF FARGO, a municipal corporation, Defendant and Respondent.
    No. 7368.
    Supreme Court of North Dakota.
    Sept. 30, 1954.

      J. F. X. Conmy, Fargo, for appellant.
    Conmy & Conmy, Fargo, for respondent.
   GRIMSON, Judge.

The plaintiff brings this action, both individually and on behalf of all others similarly situated, against the City of Fargo, a municipal corporation, for an injunction to prevent the addition of fluoride compounds to the municipal water supply. In his amended complaint alleges that he is a resident, freeholder and taxpayer in the City of Fargo, a municipal corporation; that the defendant, City of Fargo, acting in a proprietary capacity, and for compensation, furnishes water to the residents of the city; that on the 8th day of April 1952, the defendant, acting through the city commission, passed a resolution directing the city manager to take necessary steps in the water department to provide for the addition of sodium-silico-fluoride compounds to the water supply of the City of Fargo, for the avowed purpose of preventing dental caries in young children; that prior thereto the defendant had procured and- installed the mechanical equipment for injecting fluoride compounds into the municipal water supply and plaintiff alleges on information and belief that that was now being done from day to day.

Plaintiff further alleges that there is an implied contract between the defendant and the customers of said water department that the water furnished shall be “as reasonably pure and wholesome as possible;” that in reliance thereon plaintiff purchased property in the City of Fargo, procured water connections and is in all things conforming to the said implied contract on his part; - that said fluoride is a toxic or poisonous substance and does not help in making the water pure or wholesome but on the contrary makes said water adulterated and dangerous to plaintiff’s health causing him irreparable injury; that the amount of the charge by the city for water is necessarily increased by the expense involved in the operation and supervision of the machinery for the injection of the fluoride which expense was not in contemplation of the parties; that all this is in violation of the contractual rights of the plaintiff; -that he receives no benefit therefrom as he is an adult; that in order to procure pure and wholesome water not adulterated with fluoride plaintiff would have to buy such water from other sources which would cause him, “continual inconvenience, vexation, harassment, and expense,” on account of this breach by defendant of his contract to furnish pure water; that the defendant has no right “either in governmental or a proprietary capacity to sell or dispense to the plaintiff and others similarly situated any medication or alleged therapeutic agent;” that this medication is contrary to the state Food and Drug law, Sec. 19-0201, NDRC 1943, in that mixing fluorides with water, alleged to be food, injuriously affects its quality and renders it injurious to health, and contrary to the state Pharmacy Law, Chap. 43-15, NDRC 1943, in that it dispenses a medical compound by others than a pharmacist or physician. Then he finally alleges that this is mass medication, unreasonable and arbitrary, exceeds the police power, does not conform to due process, violates plaintiff’s inherent right to care for his own body and health and invades his right of freedom of religion, all contrary to the First and Fourteenth Amendments to the Constitution of the "United States and to Article I, Sections 1, 4, 11 and 16 of the Constitution of North Dakota.

It is repeatedly alleged that these results of the fluoridation cause plaintiff and all those similarly situated irreparable injury and “that pecuniary compensation will not afford adequate relief and that restraint is necessary to prevent multiplicity of judicial proceedings” and prays that for those reasons he be granted an injunction to prevent fluoridation, of the municipal water supply.

To this complaint the defendant demurred on the grounds, (1) that it did not state a cause of action; (2) that plaintiff has not legal capacity to sue; (3) that the court has no jurisdiction of the subject of the action; (4) that several causes of action have been improperly united. The district court sustained the demurrer. Plaintiff appeals from the order of the district court.

Since the case now is before us on the demurrer we must look to the complaint to see if the plaintiff has stated facts sufficient to entitle him to bring this action for an injunction.

For the purpose of testing the sufficiency of the complaint it is held that the demurrer admits the truth of all issuable, relevant, material facts well pleaded. Englund v. Townley, 43 N.D. 118, 122, 174 N.W. 755, 30 C.J.S., Equity, § 283, p. 719. Sec. 28-0741, NDRC 1943, provides: “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.” In McCurdy v. Hughes, 61 N.D. 235, 237 N.W. 748, 754, it is held that “this rule is applied where a complaint is attacked by a demurrer.” In Olsness v. State, 58 N.D. 20, 224 N.W. 913, 914, this court states: “In considering the sufficiency of the allegations of the complaint we must, of course, give to the pleading the advantage of every intendment. See Northern Trust Co. v. First Nat. Bank, 25 N.D. 74, [at page] 79, 140 N.W. 705; Weber v. Lewis, 19 N.D. 473, 126 N.W. 105, 34 L.R.A.,N.S., 364.” Lamoure v. Lasell, 26 N.D. 638, 647, 145 N.W. 577; Milwaukee Trust Co. v. Van Valkenburgh, 132 Wis. 638, 112 N.W. 1083.

A demurrer however, does not admit inferences and conclusions unless they appear clearly drawn from the facts alleged.

“Legal conclusions or inferences of fact which are not presumed or which may not be reasonably or necessarily inferred from the facts alleged are not admitted by the demurrer.” Torgerson v. Minneapolis, St. P. & St. Marie R. R. Co., 49 N.D. 1096, 1102, 194 N.W. 741, 743; See also Tayloe v. City of Wahpeton, N.D., 62 N.W.2d 31, 38; Consolidated Freightways, Inc., v. Lamb, 73 N.D. 339, 15 N.W.2d 74; City of Fargo v. Sathre, 76 N.D. 341, 349, 350, 36 N.W.2d 39; McIntyre v. State Board of Higher Education, 71 N.D. 630, 3 N.W.2d 463; King v. Baker, 69 N.D. 581, 288 N.W. 565, 125 A.L.R. 730.

The complaint in the instant case is long, repetitious and rather indefinite. It is doubtful whether some of the conclusions can be inferred from the facts alleged. We must, however, construe it liberally and give it the advantage of every intendment to determine whether it states facts sufficient to fairly apprise the defendant of the nature of the claims made against it.

There are no allegations in the complaint to the effect that plaintiff’s rights as a taxpayer are being violated. The City of Fargo operates the water supply system in a proprietary capacity. The mechanical equipment had been procured before the fluoridation was commenced. Charges are made against the consumers of the water for the cost and expense of operation. There is no allegation that public funds are being illegally expended. Under the complaint the fact that plaintiff is a taxpayer gives him no special rights in this action.

The plaintiff alleges “That an actual, or in all events, an implied contract exists obligating the defendant in the conduct of the municipal water plant to furnish water that is as reasonably pure, wholesome as possible.” To support this conclusion he alleges that the defendant furnishes and sells water to the plaintiff and other residents of the City of Fargo in a proprietary capacity; that plaintiff has made the necessary service connections with the defendant’s water main; that he is paying the charges made by defendant for the water and in all things conforming on his part to the alleged contract. These allegations seem to imply mutuality of obligations between the parties. It is alleged that the defendant is to furnish pure water and the plaintiff to pay therefor. That implies consideration on both sides.

It is true these allegations do not show that each party has the same remedies against the other. Mutuality, however, does not require that the parties have the same remedies against each other. 17 C.J.S., Contracts, § 100, p. 447.

“There are many contracts, originally unilateral, capable of enforcement when accepted. Many other contracts afford one party a remedy by an action for the recovery of money, either upon a specific promise to pay, or in an action for damage, while the other party may be entitled to a specific performance; still others, where the remedy of one party before any performance might be very inadequate, which are yet, after full performance on one side, capable of specific enforcement against the other.” Topeka Water Supply Co. v. Root, 56 Kan. 187, 197, 42 P. 715, 719.

There is nothing in the allegations to show the time during which this contract was to exist. The inference from the allegations is that the plaintiff could cease purchasing the water from the city at any time. That, however, does not destroy the mutuality of the contract.

“Where an offer is accepted, not by a promise, but for the performance of an act, it is mutual, although no time is stipulated during which performance is to be continued”. 17 C.J.S., Contracts, § 100, p. 447. See also Rague v. New York Evening Journal Pub. Co., 164 App.Div. 126, 149 N.Y.S. 668.

Sec. 9-0601, NDRC 1943 provides: “An implied contract is one the existence and terms of which are manifested by conduct.” As defined by the court in Armstrong v. Cleveland, 32 Tex.Civ.App. 482, 74 S.W. 789, an implied contract “is one which the law creates from the conduct and relations of the parties in the absence of an agreement by them.”

We hold that construing the allegations of the complaint liberally they support the conclusion that an implied contract existed between the defendant and the plaintiff.

Plaintiff then alleges in his complaint that the defendant has breached this implied contract by the addition of fluoride compounds to the water supply which he says adulterates the water and makes it dangerous to plaintiff’s health. Whether the complaint alleges sufficient facts upon which to base that conclusion is a close and serious question. He does allege that under the implied contract the defendant has to furnish water that is “as reasonably pure and wholesome as possible.” That means that the defendant must furnish water free from any “contamination rendering the water unfit for domestic use and unsafe and dangerous to individuals.” 56 Am.Jur., Waterworks, Sec. 75, p. 76, and Sec. 79, p. 983. See also Annotation 61 L.R.A. 88. The complaint then alleges that the fluoride compounds are poisonous. It does not state in what proportion to the amount of water the fluorides are injected. It is, however, common knowledge that poisons when taken in sufficient quantities do cause serious injury. It follows that the intent of the allegation is that the mixture of the fluorides with the water was in sufficient amounts to cause serious injury. It must be held, therefore, that giving the allegations in the complaint their full intendment, they form a basis from which the conclusion can be drawn that the plaintiff will suffer irreparable injury from the acts of the defendant in mixing fluoride compounds with the drinking water. The allegations of the complaint when given every intendment fairly apprise the defendant of the claim made against defendant in regards to the irreparable damage.

The violation of a contract, even if such violation causes the injured party irreparable damage, does not, however, entitle him to an injunction if he has any adequate remedy at law. But a legal remedy in order to be adequate in the sense involved in determining the jurisdiction of equity must be as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity. Bourke v. Olcott Water Co., 84 Vt. 121, 78 A. 715, 33 L.R.A.,N.S., 1015.

It is claimed in the complaint that the injuries and expense caused by fluoridation are continuous; will cause- a multiplicity of lawsuits and that there is no adequate remedy at law.

Clearly any injuries caused by fluoridation would continue as long as fluoridation is permitted. No one action at law could determine the damages sustained by the injured party. The injuries and expense up to the bringing of an action for damages could perhaps be estimated and injured party duly recompensed to that extent. However, the future damages caused by the continued use of fluoridation would necessitate the bringing of future actions. This would continue as long as the fluoridation would continue.

In Bartles Northern Oil Co. v. Jackman, 29 N.D. 236, 150 N.W. 576, this court said:

“Although a legal remedy may be adequate for any single act of trespass or any single wrong, yet when such acts or wrongs are continuous in their nature and the entire wrong may be prevented by injunction, that form of proceeding is preferable to one at law, because full compensation for the entire wrong cannot be' obtained in one action at law.”

In Viestenz v. Arthur Township, 78 N.D. 1029, 1030, 54 N.W.2d 572, 573, this court held:

“As a general rule where an injury, committed by one against another is continuous or is being constantly repeated, so that the complainant’s remedy at law requires the bringing of successive actions, that remedy is inadequate and the injury will be prevented by injunction.” 28 Am.Jur., Injunctions, Sec. 48, p. 243.

Plaintiff claims that the defendant’s breach of contract consists of furnishing contaminated and adulterated water dangerous to the health of plaintiff and others similarly situated. Thus the breach becomes a matter endangering the health of the community.

“Acts which are a menace to the public health or safety, or, as sometimes stated in greater detail, acts which are dangerous to human life, detrimental to public health, and the occasion of great public inconvenience and damage, may be enjoined.” 43 C.J.S., Injunctions, § 124, p. 671.

The allegations of the complaint liberally construed show that there is an implied contract between the defendant and the plaintiff to furnish pure water; that the defendant has breached that contract by mixing fluorides, alleged to be poisonous, with the water; that the plaintiff and others similarly situated suffer irreparable damage therefrom; that there is no adequate remedy at law and that a multiplicity of actions will result. These allegations are sufficient to constitute a cause of action, and to entitle the plaintiff to an injunction if proven.

Clearly defendant’s other grounds of demurrer that the plaintiff has not 'legal capacity to sue, that the court has no jurisdiction, and that several causes of action have been improperly united, are untenable.

“Public authorities and water consumers as well are proper parties to an action for a restraining injunction against the use or furnishing of impure water.” 56 Am.Jur., Waterworks, Sec. 77, p. 982.
“Courts of equity are very often called upon to grant injunctive relief to protect contractual rights of parties to a supply of electricity, gas, water, etc. In some instances the relief is sought by individual consumers, * * * ” 28 Am.Jur., Injunctions, Sec. 87, p. 280.
“No misjoinder occurs, however, where the matters united in the bill for injunction are but the specifications of the elements of the right of suit and of the equity which the complainant has, where, in other words, they are but the enumeration of the elements of the asserted aggression or wrong upon the complainant and in emphasis of it.” 128 Am.Jur., Injunctions, Sec. 288, p. 462.

We have concluded that the demurrer must be overruled and the defendant allowed to answer.

The order of the district court sustaining the demurrer is reversed.

MORRIS, C. J., and BURKE and SATHRE, JJ., concur.

JOHNSON, J., did not participate.