author: ROSS, Judge.

text:
    STATE of Minnesota, Appellant, v. Joel Clyde HUSSONG, Respondent.
    No. A07-785.
    Court of Appeals of Minnesota.
    Oct. 16, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Shakopee, MN, for appellant.
    Robert E. Oleisky, Minneapolis, MN, for respondent.
    Considered and decided by KALITOWSKI, Presiding Judge; WORKE, Judge; and ROSS, Judge.
   OPINION

ROSS, Judge.

The state appeals from a pretrial order suppressing evidence of a boater’s intoxication in a boating-while-intoxicated prosecution. The district court held that a deputy who stopped Joel Hussong’s boat for a moving violation did not have probable cause or reason to suspect any other offense until after the deputy initiated an unconstitutional safety-equipment inspection of the boat. Minnesota law requires all watercraft to carry an immediately available Type IV personal flotation device. Because Hussong did not have a Type TV device in plain sight of the deputy who stopped his small, open boat, the deputy had probable cause to believe Hussong was violating the law and could therefore ask Hussong to show him the device. While inquiring about the flotation device the deputy developed reasonable, articula-ble suspicion that Hussong was intoxicated, and his investigation of this offense provided probable cause to arrest Hussong for boating while intoxicated. We therefore reverse the district court’s suppression of evidence.

FACTS

In July 2006 Deputy Brett Krick was patrolling Prior Lake in a patrol boat. Joel Hussong was also operating a boat on the lake. After Deputy Krick observed Hussong fail to yield to the patrol boat’s right of way, the deputy activated his emergency lights and stopped Hussong’s boat. Deputy Krick positioned his boat next to Hussong’s boat so the driver’s sides of the boats were adjacent. Because of windy conditions, Hussong’s passenger and a deputy accompanying Deputy Krick held the two boats together.

Deputy Krick remained on his boat and asked Hussong whether he knew why Krick had stopped the boat. Hussong indicated he did not, and Deputy Krick explained the moving violation. Deputy Krick then initiated a safety-equipment inspection of the boat. He asked Hussong to produce two life jackets and Hussong did so. He then asked Hussong to show him a Type TV personal flotation device. He testified that Hussong “fumbled around the boat” looking for one but could not find the required device. Deputy Krick then asked to see a fire extinguisher, and Hussong presented his fire extinguisher.

Deputy Krick found Hussong’s fumbling to be suspicious and he smelled alcohol. He asked Hussong how much he had drunk, and Hussong admitted to drinking two beers. Deputy Krick administered several field sobriety tests and a preliminary breath test. Based on the results, he arrested Hussong for boating while intoxicated. A later test indicated that Hus-song’s blood-alcohol concentration was .11.

Following a contested omnibus hearing, the district court granted Hussong’s motion to suppress the evidence, holding that Deputy Krick lawfully stopped Hussong’s boat but lacked probable cause or reasonable, articulable suspicion to expand the scope of the initial stop. Because the court held that the request for Hussong to produce safety equipment was unconstitutional, it suppressed all evidence obtained after Krick made his request. The state appeals.

ISSUES

I. Is the district court’s finding that the deputy did not detect the odor of alcohol before he asked the operator of a lawfully stopped watercraft to show him required safety equipment clearly erroneous?

II. Does the absence of a Type IV personal flotation device in plain sight of an officer who has lawfully stopped a watercraft permit the officer to ask the watercraft’s operator to present the device?

ANALYSIS

Although Hussong challenged the existence of a moving violation before the district court, on appeal the parties do not dispute the validity of the initial stop for Hussong’s failure to yield to Krick’s right of way. See Minn. R. 6110.1200, subp. 1(C) (2005) (requiring yield to watercraft farthest to right when two watercraft risk collision); see also State v. George, 557 N.W.2d 575, 578 (Minn.1997) (stating that violation of traffic regulation, however insignificant, provides basis for stopping vehicle). But they dispute Deputy Krick’s authority to perform the safety-equipment inspection and administer the field sobriety tests that led to Hussong’s arrest. The state asserts three independent bases for reversing the district court: (1) Deputy Krick had probable cause to arrest Hus-song for boating while intoxicated before he began the safety check; (2) Deputy Krick had reasonable articulable suspicion that Hussong was violating the law because he did not have a Type IV personal flotation device in plain sight, which permitted the deputy to expand the scope of the stop; and (3) suspicionless safety checks are constitutional, and Deputy Krick did not need reasonable articulable suspicion or probable cause that any other criminal activity was occurring.

We review a pretrial order suppressing evidence by independently examining the facts to determine whether, as a matter of law, the district court erred in its decision. State v. Askerooth, 681 N.W.2d 353, 359 (Minn.2004). We will not reverse the district court’s factual findings, however, unless they are clearly erroneous. State v. Ruoho, 685 N.W.2d 451, 458 (Minn.App.2004), review denied (Minn. Nov. 16, 2004).

I

We first address the state’s argument that Deputy Krick had probable cause to arrest Hussong before conducting the challenged safety check. Probable cause to arrest exists when there are objective facts that would lead a reasonable person to believe that a crime has been committed. State v. Laducer, 676 N.W.2d 693, 697 (Minn.App.2004). We conduct an objective inquiry and review the totality of the circumstances to determine whether probable cause existed. Id. The state asserts that soon after the stop, Deputy Krick had probable cause to arrest Hus-song for boating while intoxicated based on Hussong’s driving conduct, the odor of alcohol, and Hussong’s admission to drinking two beers. Central to the state’s position is its factual contention that the deputy smelled alcohol and obtained Hussong’s admission to drinking before he asked Hussong to present the safety equipment. But the district court’s findings that these events occurred after Deputy Krick initiated the inspection are not clearly erroneous, and without these additional facts Deputy Krick did not have reason to believe that Hussong was intoxicated.

Deputy Krick testified that he questioned Hussong about his alcohol consumption when he smelled alcohol. Hussong testified that the deputy did not ask him whether he had been drinking until after he asked him to produce the safety equipment. Deputy Krick’s testimony did not directly contradict Hussong’s testimony, and, even if it had, credibility determinations are for the factfinder. See State v. Colbert, 716 N.W.2d 647, 653 (Minn.2006) (stating that witness-credibility determinations are exclusive province of factfinder). Deputy Krick testified that nothing about Hussong’s driving conduct was peculiar except for his failure to yield. He stopped the boat to “have a little chat with him about the fact that he could have caused an accident.” He testified that “[a]fter I explained the reason for the stop to [Hus-song], I proceeded to do a safety check on the boat.” He then explained that he observed Hussong fumbling while looking for the Type IV personal flotation device. When asked whether Hussong’s behavior had raised any suspicions of other criminal activity, Deputy Krick again noted the fumbling and stated, “any time somebody is fumbling around for things you begin to suspect that [the person] possibly ha[s] been drinking.”

The state points to Deputy Krick’s responses to two questions to support its position. Referring to his requests for safety equipment, he was asked, “At that point and time while [Hussong] was doing these various tasks that you asked him to do, had you smelled any alcohol up until that juncture?” Deputy Krick responded, “Yes, when I was talking to him.” He also testified that he smelled alcohol “very soon” after he stopped Hussong. But his testimony does not clearly establish a time frame because the first question refers to the time up until Hussong was in the act of retrieving the safety devices, meaning that Deputy Krick could have detected the odor of alcohol while asking him to find the items. Similarly, the deputy’s testimony that he smelled alcohol soon after he stopped the boat is not dispositive because the record is unclear as to how much time elapsed between explaining the basis for the stop and initiating the safety check. When asked about Hussong’s signs of intoxication, Deputy Krick pointed to several facts, in this order: Hussong’s inability to perform manual tasks when looking for the flotation device; the odor of alcohol; and Hussong’s admission to drinking two beers. After making all of these observations, Deputy Krick decided to administer the field sobriety tests. The district court’s finding that the deputy did not detect the odor of alcohol and obtain the admission from Hussong until after he began the safety check is not clearly erroneous.

Hussong’s failure to yield to the patrol boat is alone insufficient to constitute probable cause to arrest for boating while intoxicated. Because Deputy Krick did not develop a basis to believe that Hussong was boating while intoxicated until after he began the safety check, we must determine whether asking Hussong to present the safety equipment after he stopped Hussong’s boat exceeds the constitutional limits of the deputy’s authority.

II

This case calls into question the quantum of evidence necessary before a police officer may ask the operator of a watercraft to present required safety equipment. All watercraft using state waters must be “equipped with the number and type of personal flotation or lifesaving devices prescribed by the commissioner [of natural resources].” Minn.Stat. § 86B.501, subd. 1(a) (2006). The Department of Natural Resources has adopted rules requiring every watercraft to have one Type I, II, or III personal flotation device for each person on board, to carry a Type TV personal flotation device, and to have a fire extinguisher. Minn. R. 6110.1200, subps. 3(A), 5 (2005). Types I, II, and III are wearable flotation devices, while a Type IV device is throwable. The rules further specify that a Type I, II, or III personal flotation device must be “either readily accessible or worn,” while a Type IV device must be “immediately available.” Id., subp. 3(D)(4)(c) (2005). The rules define “readily accessible” as “easily retrievable within a reasonable amount of time in an emergency.” Id., subp. 3(D) (2005). “Immediately available” means “easily reached in time of emergency.” Id. As examples, the department has stated that “[p]ersonal flotation devices located in locked containers, under heavy objects or left in shipping bags are not considered readily accessible or immediately available.” Id.

Based on these rules and the facts before the court, we conclude that, applying any standard of evidence, Deputy Krick’s request for Hussong to present a Type IV personal flotation device was not unconstitutional. An officer may expand the scope of a stop for investigative purposes if, after the stop, he develops reasonable articulable suspicion of other criminal activity. State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002). But probable cause is required to support a warrantless search of an easily movable means of transportation, like a boat. See State v. Search, 472 N.W.2d 850, 852 (Minn.1991) (discussing automobile exception to warrant requirement); see also Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (distinguishing between, for Fourth Amendment purposes, stationary structures and movable vehicles like automobiles and motor boats). We believe that Deputy Krick’s inquiry, asking Hussong to show him a flotation device instead of asking merely whether he had one, is less than a search, which would require probable cause, but more than a request for consent to search, which would require reasonable, articulable suspicion. See, e.g., State v. Fort, 660 N.W.2d 415, 419 (Minn.2003) (holding that officer did not have reasonable articulable suspicion to support request for consent to search). Yet at oral argument before this court, Hussong’s counsel repeatedly conceded that Krick’s requests were neither substantially intrusive nor unreasonable. Although he later attempted to retract his statements as to reasonableness (but not intrusiveness), he could not articulate how the deputy’s request for Hussong to produce a required device was unreasonable under the circumstances. Neither can we. Deputy Krick did not board Hussong’s boat and he did not request that Hussong reveal any concealed areas of the boat. He asked Hus-song only to show him a required device that must be immediately available.

We need not resolve whether the deputy’s request to see the required device is an intrusion so minimal that it is similar to a request for consent or whether the higher standard of probable cause for a search applies. This is because we conclude that Deputy Krick had probable cause (and therefore also reasonable suspicion) to believe that Hussong was not carrying a required personal flotation device on the boat he was operating. See Minn.Stat. § 86B.811, subd. 1 (2004) (specifying that operating boat in violation of chapter 86 or rule adopted by commissioner of natural resources is misdemeanor). The state concedes that the rules do not mandate carrying a Type IV personal flotation device in plain sight. But the rules clearly require a Type IV device to be attainable with minimal delay; and common sense supports the requirement since the throw-able device would be of little use in an emergency if it could not be instantly accessed for immediate use. We recognize that a boater may lawfully keep the flotation device beneath clothing or a towel, outside the scope of an observer’s plain view but still immediately available in an emergency, assuming the occupants are aware of its concealed location. Because the rules require a Type IV device to be immediately available and easily reachable, however, the absence of one in plain sight provides probable cause to believe that the operator of the watercraft is violating the applicable statute and rules.

We stress that the threshold for probable cause is far less than the standard of proof required to convict. Probable cause requires only “a probability or substantial chance of criminal activity, not an actual showing of such activity.” State v. Harris, 589 N.W.2d 782, 790-91 (Minn.1999) (quotation omitted); see also State v. Olhausen, 681 N.W.2d 21, 25 (Minn.2004) (“The standard for the sufficiency of the evidence to support a conviction is greater than probable cause.”). So our opinion does not imply that the absence of the device from plain view would in all circumstances be sufficient to support a conviction, but in this case it establishes probable cause. Regardless of whether the minimum quantum of evidence necessary for an officer to ask a boater to present a Type IV personal floatation device is reasonable suspicion or probable cause, because Deputy Krick’s observations met the higher standard of probable cause to believe that Hussong’s boat lacked an immediately available Type IV personal flotation device, he had a sufficient basis to ask Hussong to present the device.

During Deputy Krick’s brief inquiry about required safety devices, he developed a reasonable, articulable suspicion that Hussong was also boating while intoxicated. After observing Hussong’s operation of the boat, observing Hussong’s post-stop conduct, smelling alcohol, hearing Hussong’s admission to drinking, and conducting field sobriety tests that Hus-song failed, the deputy had probable cause to arrest Hussong for boating while intoxicated. The district court erred by suppressing the evidence obtained after Krick initiated the safety check.

The state urges this court to go further and to reverse the district court on a broader ground, holding that suspicionless safety checks are constitutional. We decline to do so. See State v. Green, 538 N.W.2d 698, 701-02 (Minn.App.1995) (“Courts generally do not decide constitutional questions unless necessary, and will instead adopt an available alternative ground of decision.”) We also note that in addressing the issue in their appellate briefs, neither party considered the impact of a statute that gives a sheriff or conservation officer the authority to “stop, inspect, and detain for a reasonable time a watercraft observed in violation of Minnesota Statutes or rules.” Minn.Stat. § 86B.801, subd. 1(a) (2006) (emphasis added). One interpretation of this statute is that an officer may inspect broadly for new violations after a valid stop for a different violation, and another is that an officer may inspect related only to the observed violation. Suspicionless safety checks therefore may be permitted by the constitution and yet prohibited by statute, or the statute may permit inspections of otherwise lawfully stopped watercraft. We express no opinion on the resolution of these questions.

DECISION

After lawfully stopping Hussong’s boat, Deputy Krick developed probable cause that Hussong was not carrying required safety equipment. This supported Deputy Krick’s request that Hussong present a Type IV personal flotation device whether the request must be preceded by reasonable suspicion or probable cause. As Hus-song looked for the device, the officer developed a reasonable, articulable suspicion that Hussong was intoxicated. After conducting field sobriety tests, the deputy had probable cause to arrest Hussong for boating while intoxicated. The stop, the request to see the device, and the consequent investigative activity were not conducted in violation of Hussong’s constitutional rights. The district court erred by suppressing evidence that the deputy obtained after he initiated the safety cheek.

Reversed.


source: Caselaw Access Project

author: BURKE, Chief Justice.

license: Public Domain

text:
    STATE of North Dakota ex rel. Daniel Q. POSIN, Baldur Kristjanson, Cecil B. Haver, and William B. Treumann, Petitioners, v. STATE BOARD OF HIGHER EDUCATION, Respondent.
    No. 7532.
    Supreme Court of North Dakota.
    Dec. 5, 1955.
    Philip R. Bangs, Grand Forks, for petitioners, Haver, Kristjanson and Treumann.
    J. F. X. Conmy, Bismarck, for petitioner, Posin.
    Conmy & Conmy, Fargo, for respondent.
   BURKE, Chief Justice.

The relators were discharged as members of the faculty of the Agricultural College by the Board of Higher Education after a hearing before, and upon the recommendation of, the college “Advisory Committee”. They invoke the original prerogative jurisdiction of this court to secure a review of the action of the Board upon a writ of certiorari. As a basis for such review they allege that in ordering their discharge the Board acted in excess of its jurisdiction and that the rights of the public, the sovereignty of the state and its rights and franchise are directly affected by the Board’s order.

The original jurisdiction of this court “will not be exercised to vindicate private or local rights regardless of their importance, but it is reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people.” State ex rel. Linde v. Taylor, 33 N.D. 76, 83, 156 N.W. 561, 563, L.R.A. 1918B, 156.

“Before the court will, in the exercise of its original jurisdiction, issue prerogative writs, there must be presented matters of such strictly public concern as involve the sovereign rights of the state, or its franchises or privileges. The often quoted statement of the rule as to the original jurisdiction of the Supreme Court to issue writs of a prerogative character, as given in Attorney General v. City of Eau Claire, 37 Wis. 400, is well expressed and clear: ‘To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character.’ This statement of the rule has been approved in many cases in this court”. State ex rel. Steel v. Fabrick, 17 N.D. 532, 536, 117 N.W. 860, 862, quoted with approval in State ex rel. Linde v. Taylor, 33 N.D. 76, 83, 156 N.W. 561, L.R. A.1918B, 156.

The relators were members of the faculty at the Agricultural College. As such they were not public officers but only employees of the Board of Higher Education. Gottschalck v. Shepperd, 65 N.D. 544, 260 N.W. 573. The relationship between them and the Board was one of contract only. Gottschalck v. Shepperd, supra. The review sought can therefore be only for the purpose of determining whether the Board breached its contract with the re-lators and whether they are entitled to reinstatement.

We think it clear that the rights sought to be vindicated are primarily private in character. The issues involved do not in any way affect the State in its sovereign capacity as they relate only to the construction of contracts made by one of its administrative boards.

The relators have not brought any public injury to the attention of the court which justifies the exercise of original jurisdiction. Meyers v. Bertsch, 60 N.D. 127, 234 N.W. 513. The writ is therefore denied.

MORRIS, JOHNSON, SATHRE, and GRIMSON/ JJ., concur.


author: SATPIRE, Judge.

text:
    Harold LONG, Plaintiff and Appellant, v. PEOPLE’S DEPARTMENT STORE, a corporation, Gordon Savran and Haskel L. Cohodes, Defendants and Respondents.
    No. 7479.
    Supreme Court of North Dakota.
    Dec. 19, 1955.
    Rehearing Denied Jan. 17, 1956.

      J. K. Murray, Bismarck, for plaintiff and appellant.
    Cox, Pearce & Engebretson, Bismarck, for defendants and respondents.
   SATPIRE, Judge.

This is an action brought by the plaintiff against the defendants for damages for malicious prosecution. The complaint alleges that the defendant People’s Department Store is a domestic corporation, and that the defendants Gordon Savran and Haskel Cohodes were officers, employees and managing agents of said corporation. The complaint then alleges that the defendants maliciously and wrongfully caused to be filed a criminal complaint with a committing magistrate of Burleigh County, North Dakota, charging plaintiff with the crime of obtaining money under false pretenses, that under a warrant issued on said criminal complaint, plaintiff was arrested and brought before said committing magistrate, and that upon a hearing before said magistrate it was conclusively proved that plaintiff was not the party who had committed the alleged crime and that such fact was well known by the defendants, and that the committing magistrate entered judgment dismissing said action against the plaintiff. It is further alleged that said prosecution was wholly without probable cause; that by reason of said prosecution plaintiff was damaged in the sum of $5,000. Judgment is then demanded against the defendants in the sum of $5,000.

The defendants answered jointly and admitted the corporate existence of the People’s Department Store, but denied specifically that the defendants or any of them ever in any manner accused or complained against plaintiff of the commission of a crime or that they had taken any steps or proceedings for prosecution of the plaintiff for a crime. Defendants specifically deny that the plaintiff has suffered any damages by reason of any act of any of the defendants.

The case was tried in the district court of Burleigh County to the judge and a jury. At the close of plaintiff’s case, the defendants made motions for a directed verdict dismissing the action. The motions were denied. Again, at the close of all of the testimony the defendants separately made motions for a directed verdict of dismissal of the action. The trial court denied the motions and submitted the issues to the jury under Section 28-1509, 1953 Supp. NDRC 1943.

The jury returned a verdict awarding damages to the plaintiff, and thereafter the defendants made motions for judgment notwithstanding the verdict, or in the alternative for a new trial. The trial court granted the motion for judgment notwithstanding the verdict and the plaintiff appealed.

The specifications of error assigned on this appeal are that the trial court erred:

1. In granting the respondents motion for judgment notwithstanding the verdict;
2. In making and entering its written Order dated June 19, 1954 vacating and setting aside the judgment theretofore entered in favor of the appellant and against the respondents in the amount of $944.90;
3. In entering judgment in favor of the respondents and against the appellant on said motion for judgment non obstante.

Appellant argues that defendants’ motion for a directed verdict is insufficient in that it merely states conclusions and fails to state any part wherein the evidence is insufficient, and that a motion for judgment notwithstanding must stand or fall on the question of the validity of the motion for a directed verdict. Section 28-1509, 1953 Supp. NDRC 1943 makes it mandatory on the trial court to deny a motion for a directed verdict when resisted and to submit the issues to the jury. The statute provides:

“When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on which any evidence has been taken, as either or any party to the action shall request.”

The defendants in the instant case made motions for a directed verdict of dismissal of the action at the close of plaintiff’s case and again at the close of all the evidence when both parties had rested. The motion made at the close of all the testimony was made upon the following grounds:

“Mr. Pearce: At this time, both parties having rested, the defendants, People’s Department Store, a corporation, Gordon Savran, Haskell L. Co-hodes, and each of them, separately moves the Court to direct a verdict in favor of each defendant for a dismissal of the action on the grounds and for the reasons that no evidence has been offered or received in any way tending to prove a lack of probable cause for the institution of a criminal action entitled State of North Dakota v. Harold Long, on or about the 7th day of August 1952; and that the evidence affirmatively establishes that there was probable cause for the signing of said criminal complaint by Haskell L. Co-hodes against one Harold Long for the issuing of a check without funds. That no evidence has been offered or received proving-or tending to prove that there existed any malice, actual or constructive, or legal, against the plaintiff in this case, Harold Long, by any of the defendants. That the evidence establishes without contradiction that the selection of the plaintiff in this action as the man to be arrested was the' act of the sheriff’s office of Burleigh County, North Dakota, not the act of any of these defendants. That the evidence 'establishes that there was no continuation of the prosecution subsequent to the first and only hearing before the Justice of the Peace before whom Harold Long was taken upon his arrest. And upon all the grounds stated in the motions made at the close of plaintiff’s case.
* * * * * *
“Mr. Pearce: I would like to renew at this time the motion to dismiss I made at the close of plaintiff’s case on behalf of the People’s Department Store, a corporation, upon the grounds there set forth, and upon the grounds and for the reason that there has been no showing of any authority, ostensible or otherwise, of Haskell L. Cohodes, acting as either an agent or officer of the corporation in executing the criminal Complaint; and that the evidence has established without contradiction that no corporate action was ever taken in connection with the Complaint against and the arrest of Harold Long.”

. The grounds upon which the motion for a directed verdict were based were specific. They pointed out that no evidence had been, offered or received tending to prove a lack of probable cause for the signing of a criminal complaint against one- Harold .Long for issuing a check without funds; that no evidence was offered or received tending to prove that there was any malice, actual, legal or constructive against the plaintiff; t;hat the evidence established that the selection of the plaintiff in. this action as thp person to be-arrested was the act of the Sheriff of Burleigh County and not the act of any of the defendants. Section 28-1510, 1953 Supp. NDRC 1943 provides:'

“In denying a motion for a directed verdict the coürt shall be deemed to have submitted the action to the jury subject to a later determination of the questions of law raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment notwithstanding the verdict entered in accordance with his motion for a directed verdict, or if a verdict was not returned, such party, within ten days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. The motion for judgment notwithstanding the verdict may be joined with an alternative motion for a new trial. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment as if the requested verdict had been directed. If no verdict was returned, the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

In the case of Westerso v. City of Williston, 77 N.D. 251, 42 N.W.2d 429, 433, we said:

“It is settled law in this state that the sufficiency of the evidence to sustain the verdict cánnot be raised in or determined by this court unless the question was raised in the trial court either by motion for a directed verdict or by a motion for a new trial or both and the ruling or rulings on such motion or motions assigned as error on appeal.”

The question as to the sufficiency of a motion for a directed verdict was before this court in the recent case of Nicholson v. Roop, N.D., 62 N.W.2d 473, 476, 43 A.L.R. 2d 1031. The motion for a directed verdict in that case was based on the following grounds which were held sufficient to support the motion:

“ ‘The evidence wholly fails to show or to establish by a preponderance of the evidence any malice or. malicious intent on the part of the defendant, or any lack or want of probable cause and the defendant, First National Bank of Bismarck, moves that this Court direct the jury to return a verdict in its favor for a dismissal of plaintiff’s cause of action upon the same grounds and reasons that the plaintiff has failed to establish a cause of action against the defendant and has failed to prove any malice or malicious prosecution or lack of probable cause in the institution originating in the original criminal proceeding.’ ”

From the record before us in the instant •case it is clear that the motion for a directed verdict stated sufficient grounds therefor.

The appellant next contends that defendants’ motion for judgment notwithstanding the verdict is defective in that it does not ask the court to review its ruling on the motion for a directed verdict, and that it ■does not even state that it is made upon all the grounds specified in the motion for a directed verdict. It is asserted that the motion is “a wholly independent proceeding; that therefore the district court had no jurisdiction to hear or determine such motion on its merits, and' consequently should have denied it.”

The motion for judgment notwithstanding the verdict is as follows:

“Now come the above named defendants, People’s Department Store', a corporation, Gordon Savran, and Haskel L. Cohodes, each of them having heretofore at the close of the testimony at the trial of the above-entitled action on the 16th day of February, 1954, moved the Court separately to direct,a verdict in favor of each of said defendants, which motions were objected to and were denied, and thereafter a verdict having been returned by the jury in favor of the plaintiff and against all of' said defendants, and each of said defendants do now move severally that a judgment be entered in favor of said defendants, and each of them, for a dismissal of plaintiff’s, aetjom, notwithstanding the verdict, or in the alter-, native that a’ new trial be granted, of said action, on the following grounds, to-wit:
1
“That the evidence at said trial wholly failed to show or establish by a fair preponderance of the evidence, or at all, that there was any want of probable cause for the commencement of criminal proceedings against one Har-
old Long, and that in fact the evidence conclusively and without contradiction established, as a matter of law, that one Harold Long issued, executed and delivered to People’s Department Store a check for $25.00, on or about the 7th day of July, 1952, drawn on a bank in which the said Harold Long did not then, or at the time said check was presented for payment, have funds on deposit to meet said check, and that probable cause existed for the signing of a complaint against Harold Long for the crime of issuing said check without funds, which is the proceeding thereby instituted on which said action is based.
2
“That the evidence affirmatively and without contradiction establishes that there was no malice on the' part of any defendant in the signing, of said complaint or the, institution of said criminal proceeding against the party issuing said check, or against the plaintiff in this action.
3
“That the evidence affirmatively establishes, without contradiction, that the institution of the criminal proceeding which is the basis for.this action, was with the advice and with the consent of, and, approved by, an attorney at law, who was the duly appointed, qualified and acting Assistant State’s Attorney o.f Burleigh-County, North Dakota, the county where such proceedings was commenced.
4
“That the evidence affirmatively establishes, .without contradiction, that said complaint was executed by the defendant, Haskel L., Cohodes, in his individual capacity; that the plaintiff in this action was arrested by the Sheriff or his deputy, of Burleigh County, North Dakota, and that the first time that any defendant saw this plaintiff was at the hearing before I. M. Oseth, Justice of' the Peace of Burleigh County, North Dakota, on the 18th day of August 1952. That at the trial, as shown by the testimony of both the Justice of the Peace and the Assistant State’s Attorney, no defendant identified this plaintiff- as the person who signed the check or as the person against whom said complaint was directed; that said criminal prosecution was conducted entirely by the Assistant State’s Attorney of Burleigh County, as the attorney for the plaintiff, the State of North Dakota; and that at the conclusion of said hearing or trial, this plaintiff — who was the person arrested by the Sheriff — was discharged and said criminal proceeding dismissed. That the evidence discloses that no other action was taken against this plaintiff, and that the only continuation of the prosecution claimed was the fact that Iiaskel L. Cohodes, at the request and direction of the Assistant State’s Attorney, appeared as a witness in said action. That as a matter of law, the participation by Haskel L. Cohodes, one of the defendants in this action, was not such a continuation of the prosecution as to constitute in law any malice.
5
“That the evidence of both plaintiff and defendants fails to establish by a preponderance of the evidence that the defendants, or any of them, were responsible for the apprehension and arrest by the Sheriff of the plaintiff in this action as the person accused of issuing the said check.
6
“That the plaintiff has failed, as a matter of law, to establish that either or any of the defendants- in this action acted without probable cause or that any malice existed, either actual or implied.
7
“That the evidence, without contradiction, establishes that at the time said criminal complaint was signed, defendant Cohodes furnished the State’s Attorney, the Justice of the Peace, and the arresting officer with a means of identifying the intended defendant, to-wit: the number of the North. Dakota driver’s license, and the place of residence, to-wit, Washburn, North Dakota, of the person who issued the check, and that the Sheriff of Burleigh County, , ignoring said means of identification and on his own responsibility, arrested the plaintiff in this action; and that as soon as the plaintiff in this action was brought before the magistrate and a hearing held thereon, the Criminal prosecution against him was dismissed.
8
“That even if defendants had identified the plaintiff herein as the person who issued the check, that said identification would not be sufficient legal evidence to sustain the verdict in this case because there was no evidence offered to sustain a claim that such identification was with malice.
9
“That there is insufficient evidence to justify the verdict of the jury in this, action, and that it is against the law.
10
“This motion is made and based upon the minutes of the Court, the pleadings and records in the above entitled action,, and on the evidence and exhibits introduced in the trial of said action.”

The contention of the appellant that the-motion for judgment notwithstanding the verdict is defective in not stating that it is. made upon all the grounds for a directed verdict is evidently based on Section 28-1510, 1953 Supp. NDRC 1943, which among other things provides that “a party who has moved for a directed verdict may move to-have the verdict and any judgment entered, thereon set aside and to have judgment notwithstanding the verdict entered in accordance with Ms motion for a directed verdict.”'

While the motion for judgment notwithstanding the verdict does not state in the exact words of the statute that it is made in accordance with the motion for a directed verdict, nevertheless the grounds upon which the motion is made are almost identical with the grounds upon which the motion for a directed verdict is made. It would indeed be hypertechnical construction of the statute to hold that the exact words ““in accordance with his motion for , a directed verdict”, must be made a part of the motion for judgment notwithstanding the verdict. Rather the requirement of the statute is that a motion notwithstanding the verdict must be made upon the same grounds as the motion for a directed verdict.

An almost identical situation was before this court in Nicholson v. Roop, supra, N. D„ 62 N.W.2d 473, 43 A.L.R.2d 1031. The motion for judgment notwithstanding the verdict did hot use the phrase "in accordance with his motion for a directed verdict,”' but the grounds upon which both motions were made were practically the same. A comparison of the grounds specified in the two motions in the instant case shows that the language in both is practically identical. We conclude therefore that there is no merit to appellant’s contention in-this respect.

We now come to the consideration of the merits of the case. The appellant contends that the evidence is fully sufficient to support the verdict of the jury.

The facts in the case are substantially as follows:

On July 7, 1952, a person giving his name .as Harold Long appeared at the store of the defendant, People’s Department Store, at Bismarck, North Dakota, purchased some merchandise, and gave in payment a check in the sum of $25 drawn on The Farmers Security Bank, Washburn, North Dakota. Haskel Cohodes who waited on the purchaser in this transaction did not know him. He asked the purchaser for some evidence of identification, and was •shown the purchaser’s drivers license carrying the number 89581. Cohodes put this number in the lower left corner of the check with the letters *D. L. before it. This drivers license was issued to one Harold Long which was the name signed on the check. The Harold Long who signed the check is a real person, but is not the plaintiff1 in this case, although their names are identical.

The check was returned by the drawee bank marked “No Account”. Thereupon Mr. Cohodes took the check to the assistant state’s attorney of Burleigh County. A criminal complaint was prepared by the assistant state’s attorney charging one Harold Long with, the offense of issuing a check without having funds or credit for payment of same, which complaint was signed by said Haskel Cohodes. The check with the drivers license number noted thereon was left with the assistant state’s attorney.

At the trial in the instant case Colonel I. M. Oseth, the Police Magistrate who acted in the capacity of Justice of Peace at the hearing in the criminal case involving the bad check testified that Cohodes was the only witness for the state in the,criminal case, and that he, Cohodes, stated definitely that he could not identify the defendant in that case, Harold Long, as the person who presented the check, at the store.

Alfred Thompson, called as a witness for the defendants, testified that he was the assistant state’s attorney of Burleigh County; that he prepared the complaint charging one Harold Long with the offense of issuing a check without funds and that he tried the case on behalf of the state; that Haskel Cohodes was the only witness for the state in the said ease; that the witness Cohodes was asked by said Thompson whether he could identify the plaintiff Harold Long, as the man who wrote the check involved and that Cohodes replied, “I can’t identify the man as the individual who passed the check at our store.”

The important question before us is as to what took place when Schmitz, the sheriff, called at defendants’ store several days after the warrant had been issued upon the complaint signed by Cohodes. The sheriff told Cohodes and Savran that the only Harold Long that he knew was a brother of one Jerry Long who operhted an oil station and that said Harold Long operated a beer tavern. We quote from his testimony:

“Q. When you got, that warrant, did you go to the Peoples’ Department Store to have the man identified, which Long they wanted? A. I was in the store there.
“Q. Did you see Mr. Cohodes there and Mr. Savran? A. Yes.
“Q. Were they both together, Co-hodes and Savran? A. Yes.
“Q. What did they say to you as to which Long to arrest? A. We got talking about this check deal, and I said there was a Harold Long in town operating a tavern, that he is a brother of Jerry Long running and operating the oil station, and one of them says, ‘That must be the man, this Harold Long that we have the check against.’
“Q. Which one said that? A. I don’t know which one.
“Q. It was either Cohodes or Sav-ran? A. I don’t know which one it was, but they said, ‘Evidently that was the man’.
“Q. Then did you go back and give that information to Goldader? A. Yes, sir.
“Q. And told him to go and arrest him? A. I told him to go and take him in front of the Judge.
“Q. Do you know this Long that runs the oil station? A. Yes, Jerry.
“Q. And did you know at that timé he was a brother to Harold here, the plaintiff? A. Yes, sir.
“Q. And when they told you that the man they were after was a brother to the Long in the oil station, you knew it was the plaintiff they wanted ? A. I took for granted that was the one they wanted, yes.”

On cross examination the' sheriff testified further with reference to the conversation in defendants’ store.

“Q. Did you have the warrant with you, Mr. Schmitz, the day you were in the store? A. No, I didn’t.
“Q. Had you gone to the store particularly to talk to them ? A. No, sir. I went in to do some shopping, and they asked me if we had located this, man Long.
“Q. What did you say? A. I told them that the only Long we knew was 'the one operating a tavern and that he was a brother to Jerry, and someone said, ‘That is the man that wrote the check,’ or words to that effect.
“Q. Those exact words appear quite important in this lawsuit. You said one of them said, ‘That must be the man’? A. This is right.
“Q. - Then you said, your next statement was, ‘That is evidently the man’.. Can you at this time recollect the exact, words? A. As close as I can remember, Mr. Pearce, it was: they said that, he was the man, or the Harry Long-that wrote that check.
“Q. I am trying to point out what, they said, that, ‘he was the man’, or ‘evidently, he must be the man’’; which was it? A. As close as I recall, they said he was the man.
“Q. Your recollection was earlier-when you first said that, that they said’ ‘evidently he was the man’ ?
“Mr. Murry: We object to that as. argumentative.
“The Court: Overruled. A. I believe they said he was the man.
“Q. Then you wish to correct your testimony when you said he said, ‘evidently he was the man’? A. Yes, if.' the meaning is not the same?
******
“Q. Do you remember the day that you were in the People’s Department Store? A. That would be the 15th.
“Q. So, any other action ■ that you took before that must have been between the time that the warrant was delivered to your office, probably on the 11th, and August 15th? A. That is right.
“Q. And then you went back to your office and gave it to Mr. Goldader, your deputy at. the time ? A. That is right.
“Q. And what information did you give Mr. Goldader as to where to pick up the defendant? A. Of course, I couldn’t give you the exact words, but I told Mr. Goldader that I had the information that that Harold Long was the man that was wanted on this warrant from the information I got at the ■store, and I told him to go and get him and bring him before the Court to see if he was the fellow.
“Q. Did he do that that day? A. Yes, he did.”

Neither Savran nor Cohodes denied that the conversation in the store testified to by sheriff Schmitz took place. Their testimony is that they could not remember the conversation. We quote from the testimony of Cohodes:

“Q. Do you recall after you signed the Complaint and before the trial there was a conversation in your store with P. J. Schmitz, the Sheriff? A. I remember him being there and making a purchase.
“Q. Is he a frequent visitor in your store? A. I would say occasionally.
“Q. What was the conversation with Mr. Schmitz as near as you can recall it, concerning this case — by this case, I mean the case that you had commenced by signing the Complaint? A. As I remember Mr. Schmitz came in the store and I believe he came and purchased a hat at the time, and Mr. Schmitz and mysélf were talking to Mr. Savran and he mentioned the fact that he had this warrant that I had sworn out on a bad check charge and we got' to talking about the bad check and the party who had signed this check, and I recall Mr. Schmitz making the statement that there is a fellow who runs a gas station, Jerry Long, and he has got a brother, Harold Long. He said maybe that is the guy, or something like that, I don’t remember the exact words he used, and that is all I remember about the conversation concerning this case. There were customers in the store and during the time Mr. Schmitz was there I was with the two gentlemen and away waiting on customers.”

With reference to this conversation Mr. Savran testified as follows:

“Q. After the Complaint had been signed by Mr. Cohodes, do you recall Mr. P. J. Schmitz being in your store and talking about it? A. Well, I recall P. J. Schmitz being in the store.
“Q. Do you recall that a conversation was had concerning this bad check and what was being done about it? A. I recall a conversation that was on this particular bad check.
“Q. As near as you can recall, what was the conversation between Mr. Schmitz and yourself? A. The conversation was that he hadn’t yet succeeded in running down the giver of the check.
“Q. Do you know any person named Plarold Long? A. No, I did not.
“Q. Did you know any person named Jerry Long? A. N.o, I didn’t know any person named Jerry Long.
“Q. Was there a conversation there by Mr. Schmitz to the effect that a Mr. Jerry Long had a brother named Liar-old Long? A. I do not recall.”

The question to determine is whether on the evidence the trial court erred in granting defendants’ motion for judgment notwithstanding the verdict. In a case of malicious prosecution the plaintiff has the burden of proof both as to lack of probable cause and malice. Mielke v. Rode, 58 N.D. 465, 226 N.W. 507. However, in considering the evidence it must be construed in the light most favorable to the plaintiff. Olstad v. Stockgrowers Credit Corporation, 66 N.D. 416, 266 N.W. 109; Bormann v. Beckman, 73 N.D. 720, 19 N.W. 2d 455; Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803.

We have quoted from the testimony of Sheriff Schmitz on the occasion when he was in the defendants’ store. He informed Cohodes and Savran that a Jerry Long operated an oil station in Bismarck and that his brother Harold Long operated a tavern; that either Cohodes or Savran said “he must be the man”1 or “he is the man that signed the check”. They did not deny that they made these statements, but said they could not remember the conversation with Schmitz. The sheriff stated that on the information given him by Cohodes and Savran he directed his deputy, Goldader to arrest Harold Long and bring him before the Justice of the Peace, and accordingly the deputy made the arrest. In the case of Nelson v. Scherling, 71 N.D. 337, 300 N.W. 803, 804, this court said:

“On a review of an order denying a motion for judgment notwithstanding the verdict, this court is limited to a consideration of the evidence. If the record is such that there was some issue of fact to submit to the jury, and tire jury rendered a verdict thereon, then it is clear the motion for judgment notwithstanding the verdict should be denied.
“It is not necessary to review the decisions of this court setting forth the principle involved. Such motion will not be granted where there is an issue for the jury to pass upon under the evidence, as it does not go to the weight of the evidence. In passing upon such matter, the evidence is considered in the light most favorable to the party against whom the motion is made. State [ex rel. Brazerol] v. Yellow Cab Co., 62 N.D. 733, 736, 245 N.W. 382, 383.”

While the evidence is unsatisfactory, nevertheless it cannot be said as a matter of law that there was no evidence in support of the verdict of the jury. The testimony of Sheriff Schmitz as to the conversation in defendants’ store is not contradicted. Cohodes and Savran said they could not remember the conversation. Evidently the jury believed the testimony of the sheriff.

We conclude that upon the evidence and the record the trial court erred in granting defendants’ motion for judgment notwithstanding the verdict.

The motion of the defendants for judgment notwithstanding the verdict was coupled with an alternative motion for a new trial. They may therefore present their alternative motion to the district court which may in its discretion grant or deny it. In the case of Martin v. Parkins, 55 N. D. 339, 213 N.W. 574, 576, this court said:

“Whether or not a new trial shall be granted rests largely in the sound discretion of the trial court. The action of the trial court in this regard will not be disturbed on appeal unless there is an abuse of discretion, and where a new trial is granted on the ground that the evidence is insufficient to sustain the verdict or judgment, the reviewing court will consider and weigh the evidence only so far as may bp necessary to determine the question whether the trial court acted within its discretion. See Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Pengilly v. J. I. Case Threshing Machine Co., 11 N.D. 249, 91 N.W. 63, 12 Am.Negl.R. 619; Aylmer v. Adams, 30 N.D. 514, 153 N.W. 419; Lemke v. Dougherty, 53 N.D. 382, 206 N.W. [222] 223; Standard Oil Co. v. Kennedy, 54 N.D. 31, 208 N.W. 555.”

The order of the district court granting -defendants’1 motion for judgment notwithstanding the verdict is reversed and the •case remanded with leave to the defendants to present their alternative motion for a new trial.

BURKE, C. J., and SATHRE, MORRIS, JOHNSON and GRIMSON, JJ.


author: GRIMSON, Justice.

text:
    Henry CORNELIUS, Kenneth Lewis, and Wallace Lewis, Plaintiffs and Appellants, v. The CITY OF FARGO, a municipality organized and existing under the laws of North Dakota, and the Board of City Commissioners of the City of Fargo, North Dakota, Defendants and Respondents.
    No. 7519.
    Supreme Court of North Dakota.
    Dec. 5, 1955.
    Rehearing Denied Jan. 17, 1956.

      George E. Duis, Fargo, for appellants.
    Conmy & Conmy, Fargo, for respondents.
   GRIMSON, Justice.

This is an action brought to vacate certain annexation proceedings by the defendant, City of Fargo, as invalid and void, and asking for an order enjoining the defendant from proceeding further under said annexation proceedings. The district court found for the defendant and dismissed the action. Plaintiffs appeal.

This was an action properly triable to the court. There was no demand for a trial de novo. Under Section 28-2732, NDRC 1943, a party desiring to appeal from a judgment in any case tried to the court shall specify in the settled statement of the case “the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court.”

In the case of Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409, this court held:

“In appeals to this court under Section 28-2732, NDRC 1943, the evidence cannot be reviewed unless the appellant demands a trial anew of all the issues or of some particular fact and such demand is included in the statement of the case.”

The appellant filed only two specifications of error and in only one of them is-there a reference to any fact that he seems to question. The specification reads as follows :

“That the court erred in finding the said annexation to be valid and legal and in accordance with the laws of the State of North Dakota, when the Defendants failed to comply with 40-5107 NDRC 1943, as amended, in that the Defendants’ resolution to annex did not state properly the number of property owners in the areas subject to annexation, as required by said Statute authorizing the Defendant City to annex those certain territories within its city limits, as described in the Defendants’ resolution to annex, Defendants’ exhibit A, herein.”

We take it that in this specification of error the reference of plaintiffs and appellants to the number of property owners in the territory to be annexed as not being properly stated in the original resolution, is a statement of fact which he desires this court to review. Section 40-5107, NDRC 1953 Suppl. provides:

* * * Before said resolution is-passed the governing body shall compute the number of property owners- and the assessed valuation of the property in the territory proposed to be annexed. The resolution shall describe particularly the land proposed to be incorporated within the city limits, setting forth the boundaries-thereof and describing the land platted by blocks and lots, and shall state the number of property owners therein.”

On Feb. 16, 1954, the Board of City Commissioners of the City of Fargo passed a resolution “extending the corporate limits of the City of Fargo and annexing to the City of Fargo a tract of land located in the East Half of Section 2, Township 139, Range 49 West of the 5th. P. M. in Cass County, North Dakota.” Said tract of land was fully described in the resolution together with the facts required by Section 40-5107, NDRC 1953 Suppl. The number of property owners in the tract was placed at 282. This resolution was duly published in the Fargo Forum for four weeks as provided by Section 40-5108, NDRC 1953 Suppl. Within ten days after the last publication a written protest of the proposed extension was filed, signed by 218 persons, being more than one-fourth of the property owners stated in the resolution. Thereupon the city noticed a hearing for Apr. 19, 1954 upon said protesting petition, to determine whether the protest was signed by more than three-fourths of the property owners in which event the Board could not proceed with the annexation. Sec. 40-5108, NDRC 1953 Suppl. At said hearing 31 persons appeared in support of the annexation and none against. Twenty-four persons duly filed withdrawals of their signatures to the protesting petition. Gallaher v. City of Fargo, N.D., 64 N.W.2d 444. Four of said persons were found not to have signed the original protest petitions or were not owners of record, leaving 20 to be withdrawn from the original protest petition. There then remained the names of only 198 on those petitions which was less than three-fourths of the 282 required to divest the City Board of power to annex.

The claim is made that 282 was not the correct number of property owners and that, therefore, the whole proceedings are void. The determination of whether or not the correct number of property owners was stated in the resolution depends on who is included in the term “property owner.” The statute uses only the broad term, “property owner.” Does that term include all persons having an interest in a lot or plot of ground in joint tenancy, co-tenancy or tenancy in common, or only one person as the owner of each lot? The testimony shows that in the instant case the number of 282 property owners was arrived at on the theory that only one owner could be counted even though the lot was held in joint tenancy, co-tenancy or tenancy in common. A property owner was counted as often as the . number of lots he owned. The protests, numbered only 198 which was less than three-fourths. On a checkup, however, it was found that when a property owner was counted only once irrespective of the number of lots he owned there were only 254 owners in the area involved, and counting those who protested on the same basis there were found to be only 113 owners protesting which was still less than three-fourths of the number of owners on such theory of counting them. It was further shown that if the persons owning lots in joint tenancy, co-tenancy or tenancy in common were all counted as owners of such lots the total number of owners would be 378 and counting those who protested on the same theory their number would be 178 which is still less than three-fourths of the number of owners on such theory of counting them. Some other theories on how many should be included in the term “property owner” were shown and Mr. Comrie, the assessor, presented an analysis showing that on whatever theory the owners were counted those who protested were still less than three-fourths of the property owners when the same theory was used in counting both owners and those protesting. Even if the number of 282 was not arrived at on the proper theory of ownership it would not make any difference to the defendants. They had less than three-fourths of the total number of property owners on any theory proposed.

It is clear that the intent of the legislature in requiring the number of property owners to be included in the resolution was to give the property owners of the territory involved a chance to make a protest and if three-fourths of the property owners-protested the annexation would not take effect. That intent was carried out in this proceeding.

Substantial compliance with the statute on annexation has been held sufficient. 62 C.J.S., Municipal Corporations, § 51, p. 149. McQuillin on Municipal Corporations, Sec. 7.14, p. 290, lays down the rule that statutes providing for the method of extending corporate boundaries “are to be construed liberally in favor of the public.”

In Red River Valley Brick Co. v. City of Grand Forks, 27 N.D. 8, 36, 145 N.W. 725, 731, which involved annexation proceedings to the City of Grand Forks, the court cites with approval from State ex rel. Minehan v. Meyers, 19 N.D. 804, 124 N.W. 701 ,as follows:

“ ‘It must be borne in mind that the proceedings for the division of a county and the organization of new counties are strictly statutory, and no intendment can be indulged in their favor. It is no doubt true that the statute must receive a liberal construction to the end that the legislative intent may be given .effect * * *.’”

The evidence concerning the number of property owners in the original resolution shows sufficient compliance with the .statute. The proceedings are not void on that account.

The appellant’s other specification of error reads as follows:

“The Court erred in finding and adjudging that the annexation by the City ■of Fargo, North Dakota, of certain lands generally known as the College .Second Addition, the Golden Ridge Addition, and Teigen’s Second Sub-division of Cass County, North Dakota, as .are more particularly described in the judgment, to be due and regular and in accordance with the laws of the State of North Dakota, and valid and legal in all respects.”

Under that specification we cannot review any of the evidence but must consider all questions of fact to have been properly decided by the trial court since there is no demand for a trial de novo. We can only determine whether under the issue formed by the pleadings the findings of the trial court will sustain the judgment.

In Lunde v. Irish, 50 N.D. 312, 316, 195 N.W. 825, 827, this court says:

“In this case the appellants have not demanded a trial anew of the entire case, nor have they demanded a retrial of any specified question or questions of fact. Hence under the statute, as interpreted by several decisions, this court will not review the evidence, but following the language of the statute will deem all questions of fact as embodied in the findings of the trial court ‘to have been properly decided by the trial court.’ State [ex rel. McClory] v. McGruer, 9 N.D. 566, 84 N.W. 363; .Security Improvement Co. v. Cass County, 9 N.D. [553] 555, 84 N.W. 477; Bank [of Park River] v. Town of Norton, 14 N.D. 143, 104 N.W. 525. It therefore remains only to determine whether the pleadings and findings will sustain the judgment. Bank [of Park River] v. Town of Norton, supra.” See also Coffland v. Naftalin, 58 N.D. 386, 226 N.W. 627.

The court made the following findings of fact:

“2. That the Board of City Commissioners correctly found that less than three-fourths of the propery owners had protested the annexation.
“3. That all the proceedings taken by the governing body, the board of city commissioners, of the City of Fargo, in making the annexation, were- due and regular and in accordance with the statutes of the State of North Dakota.”

The only issue raised by the pleadings is the validity of the procedure for the annexation. The above findings determine that issue and fully support the judgment of the district court that the annexation of the territory described was valid in all respects.

The judgment of the district court is affirmed.

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


author: GRIMSON, Judge.

text:
    STATE of North Dakota, Plaintiff and Respondent, v. Peter JORDA, Defendant and Appellant.
    No. 7511.
    Supreme Court of North Dakota.
    Dec. 19, 1955.

      Leslie.R. Burgum, Atty. Gen., Owen T. Owen, Asst. Atty Gen., and C. E. Crane, State’s Atty., Mott, for plaintiff.
    J. K. Murray and William S. Murray, Bismarck, for defendant.
   GRIMSON, Judge.

This case was commenced by a complaint to the attorney general alleging that the defendant, a licensed beer and liquor dealer, ■sold alcoholic beverages to minors. Notice •of a hearing thereon was given to the defendant as provided by Section 5-0511, NDRC 1953 Suppl. A hearing was had on ■evidence taken before an Assistant Attorney General. He made findings showing the •defendant guilty as charged and recommended that his licenses be revoked. The attorney general acted thereupon and made an order revoking the defendant’s beer and liquor licenses. An appeal was taken under Section 5-0515, NDRC 1953 Suppl., and the revocation of the licenses stayed during the appeal. The procedure on the appeal .and the review in district court was had in accordance with the provisions on appeal from an administrative agency. Chapter 28-32, NDRC 1943. The court heard the cáse without a jury on the evidence offered before the attorney general as provided by Section 28-3219, NDRC 1943. The district court sustained the order of the attorney general and rendered judgment revoking the defendant’s 1954 liquor licenses. Defendant appealed and demanded a trial de novo.

The appellant alleges as specifications of insufficiency of the evidence as follows:

“The evidence is insufficient to sustain the judgment of the court in that no evidence of any kind or character was introduced in the trial of the above entitled action; that the court based his decision solely upon a transcript of purported evidence had before the Attorney General; that the so-called record upon which the court based his decision was not made by the Attorney General in conformity with law, in this, among other things, that there were no specifications. of issues to be tried before the Attorney General ever served upon the defendant.”

The real issue in this case is whether an appeal from an order of the attorney general revoking a liquor license under Chapter 5-05, NDRC 1953 Suppl. can be tried in the district court in the same manner as an appeal from an administrative agency under the' Uniform Practice Act, Chapter 28-32, NDRC 1943. Such a determination involves the construction of Sec. 5-0515, NDRC 1953 Suppl. pertaining to appeals from an order of the attorney general revoking a liquor license.

“In the construction of statutes a determination must be made as to what was the intention of the legislature in the enactment thereof. Such intent is the controlling factor and must be given effect to the fullest degree. As aids in finding that intent, the reason for the enactment of the law, evils at which the legislation is aimed, the historical background and other statutes on related subjects may be considered.”- Hoellinger v. Molzhon, 77 N.D.- 108, 41. N.W.2d 217, 19 A.L.R.2d 1147;. 59 C.J. 948, 50 Am.Jur. 271;” Coulter v. Romberg, N.D., 55 N.W.2d 516, 519.

Sec. 5-0515, NDRC 1953 Suppl. was first enacted as Section 11, Chapter 50, 1945 Session Laws providing for the licensing of retail dealers in intoxicating- liquors by the attorney general and giving .him the authority upon complaint of violation of the act, to hold a'hearing and if the evidence warranted, to revoke such retailer’s license to sell intoxicating liquors. Said Section 11 then read:

“The action of the Attorney General , in revoking or suspending a license may be appealed to the district court of the county and district in which the premises described in the license are located by procedure ápplicable to appeals from Justice Court”.

Under this provision for appeal there would necessarily have to be a trial anew in district court just as appeals from justice court are tried.

This section was amended by Chapter 9 of the 1947 Session Laws, Sec. 5-0515, 1949 Suppl., by adding the following provision.

“Such appeal shall be heard and determined by the court, without a jury, at any time fixed by the court. A certified transcript of the evidence adduced at the hearing provided for in section 8 of chapter 50 of the Session Laws of North Dakota for the year 1945 may be introduced in evidence and shall be considered by the court.”

Under this amendment the proceedings were simplified by eliminating a jury trial and making the attorney general’s record admissible as evidence but further evidence could be offered and a trial anew had.

In the case of Guon v. Johnson, 76 N.D. 589, 38 N.W.2d 280, 283, a hearing was had before the attorney general under the law as amended in 1947 on a complaint charging Guon with selling alcoholic liquor to minors. The attorney general found him guilty and ..suspended his beer and liquor licenses. An appeal was taken to the district court and presented in district court by both parties on the theory that an appeal from the order of the attorney general was one- within the purview of the provisions of the Administrative Agencies ■ Uniform Practice Act. On the appeal-to the supreme court this was .found to be error and the case was remanded to the district court. In the opinion Judge Christianson distinguishes betw.een the procedure upon appeal from justice .court as provided in the 1947 act and an appeal under the Administrative . Agencies Uniform Practice Act. The court says:

“The distinctions between an appeal-under the Administrative Agencies Uniform Practice Act and an appeal from a justice court for a new trial in the district court are obvious. On an appeal under the Administrative Agencies Uniform Practice Act the review in the district court is restricted to the record that was made in and certified by the administrative agency. On an appeal for a new trial under the statute rela-ting to appeals from a justice court the district court is charged with the duty and has the power to try the action precisely as though no former trial had been had. In other words on an appeal to the district court under the provisions of the Administrative Agencies Uniform Practice Act the district court reviews the action and decisions of the administrative agency upon the record made by that agency; * * *. If. such appeals were subject to the provisions of the Administrative Agencies Uniform Practice Act the transcript of the’ proceedings had below including-the-evidence would be part of the record certified to the district court on appeal and the review in the .district court would be confined to such record. The transcript of such evidence would not constitute something that might be of- . fered in evidence, it would constitute the very record to be reviewed.”

The opinion in the Guon case was handed down on June 27, 1949. At the next session of the legislature in January 1951, action was taken to amend and re-enact Section 5-0515, NDRC 1949 Suppl. It will be presumed that the legislature had knowledge of the Guon decision and acted with the intention of adopting that method of review which seemed the simplest and speediest according to Judge Christianson’s analysis. The Judiciary Committee of the House introduced H.B. No. 599. The title reads: “An Act to Amend and Re-enact Section 5-0515 of the 1949 Supplement to the North Dakota Revised Codes of 1943, Relating to Review by the Court of Revoked or Suspended License for Alcoholic Beverages.” Section 61 of the North Dakota Constitution provides that: “No bill shall embrace more than one subject, which shall be expressed in its title, * * Clearly this title shows that the subject of the amended act was to provide for a review by the court of the proceedings had for the revocation or suspension of a liquor license. The bill then provided as follows:

“The action of the attorney general in revoking or suspending a license may be appealed to the district court of the county and district in which the premises described in the license are located by procedure applicable to appeals taken in the manner provided in Chapter 28-32 of the title Judicial Procedure, Civil, as now or hereafter amended. * * *”

This bill was enacted and is now Section 5-0515, NDRC 1953 Suppl. It will be noticed there is no reference in this amended Act to the method of trial as there had been in the 1947 amendment. There is, however, a reference to the chapter containing the procedure o.f trial on appeal from the decision of an administrative agency. Sec. 28-3219, NDRC 1943, provides:

“The court shall try and hear an appeal from the determination of an administrative agency without a jury and the evidence considered by the court shall be confined to the record filed with the court. * * *”

Considering this last amendment in connection with its title and the law it replaces, it is clear that it provides not only the method of appeal from the attorney general’s decision as defendant claims but also the method of the procedure on trial in district court. '

The intent of the legislature continued to be to simplify the procedure and adopt the procedure necessary to do that. In his summary in Guon v. Johnson, supra, Judge Christianson says:

“The right of appeal from an order of the attorney general suspending or revoking such license, the method of taking an appeal, the scope of the trial in the district court, the appeal to the supreme court and the scope of review in the supreme court all stem from the statute, which authorizes the appeals to be taken and authorizes the court to hear and determine the.m. Helland v. Jones, [76 N.D. 511] 37 N.W.2d 513.”

In the case at bar the District Court correctly followed the procedure set forth in Chapter 28-3219, NDRC 1943. ■

It is further claimed on behalf of the defendant that it was error to refuse his demand for a jury trial and that the court erred in refusing to permit him to offer evidence in his own behalf. As heretofore shown the Uniform Practice Act, Chapter 28-32, NDRC 1943 provides that there shall be no jury trial and that the case shall be reviewed solely on the record of the attorney general’s hearing. Defendant further moved to strike that record for lack of jurisdiction in the attorney general. In support thereof he claims that the notice of hearing before the attorney general did not specify the issues which were to be tried. The record shows, however, that the affidavit and complaint were duly mailed to the defendant by registered mail with the notice of hearing and that they specified the charge with clarity and certainty sufficient to reasonably' apprise the defendant with the offense charged against him as provided by Section 5-0511, NDRC 1949 Suppl. Defendant appeared at said hearing generally and admitted proper service.

Defendant finally moved to remand the case to the district court for the introduction of additional evidence by the defendant. In support of that motion the defendant filed the affidavit of his attorney excusing his failure to introduce any testimony before the attorney general on the ground that he, in good faith, construed the appeal statute to allow him a new trial in the district court. The defendant, however, did have an attorney at the attorney general’s hearing and announced: “The defendant is ready.” The defendant makes no contention that he had any evidence to offer. He made no motion for a continuance to obtain evidence and rested his case without offering any evidence.

In that affidavit it was further stated that the defendant wished to offer the testimony of six witnesses to the effect that the defendant did not sell any intoxicating liquor to the minor named in the complaint any time or any place. In that list the defendant himself and his wife were named. The defendant had been present at the original hearing without denying the charge. The record further shows that he pled guilty in justice court to the offense of delivering beer to the minor named in the complaint. There is no affidavit from any of the persons named as to what they would testify.

Section 28-3218, NDRC 1943 provides as follows:

“If an application for leave to adduce additional evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing or proceeding had before the administrative agency, or that such evidence is material to the issues involved and was rejected or excluded by the agency, the court may order that such additional evidence be taken, heard, and considered by such agency on such terms and conditions as the court may deem proper.”

The evidence shows no reasonable grounds for the failure to adduce the evidence, which defendant now claims to have, at the hearing before the attorney general. The attorney general’s hearing was held April 1954. The attorney general’s order revoking defendant’s license was made on June 24, 1954. There was considerable delay in bringing the matter for hearing in district court. During that time no application was made for a further hearing be-foré the attorney general for the presentation of this evidence. Finally the district court hearing was had on the 5th day of October, 1954. Not until then was any claim made that there were witnesses who could not appear at the hearing before the attorney general. The district court properly held that the application for remand was not timely and that there was no sufficient excuse for the lack of timeliness.

Furthermore, the question of materiality of the proposed testimony is not sufficiently shown. There is no affidavit from any of those witnesses as to what they would testify. The statement in the affidavit of defendant’s attorney that they would testify that the defendant, “did not violate any laws, nor sell any intoxicating liquor to William Iszler anytime or any place” is quite general and did not satisfy the district court that the additional evidence would be material. The court properly, denied the application.

Defendant makes a final specification of error that the court erred in making all his rulings in the trial of the case and in ordering judgment affirming the .attorney general’s revocation of the licenses. Under that assignment, however, there are no specific instances cited and we do not find any such errors.

The judgment of the district court is affirmed.

BURKE, C. J., and JOHNSON, SATH-RE and MORRIS, JJ., concur.


text:
    NORTHERN IMPROVEMENT COMPANY, a corporation, Plaintiff and Respondent, v. Ted ST. PETER, individually and as secretary-treasurer of General Drivers, Helpers, Warehousemen, Dairy Employees and Inside Workers Union, Local 116, A. F. L.; General Drivers, Helpers, Warehousemen, Dairy Employees and Inside Workers Union, Local 116, A. F. L.; Tom Tollefson, individually and as business agent of International Union of Operating Engineers, Local 49, A. F. L.; International Union of Operating Engineers, Local 49, A. F. L.; A. F. Wonderlich, Jr., individually and as president of International Brotherhood of Electrical Workers, Local 1426, A. F. L.; International Brotherhood of Electrical Workers, Local 1426, A. F. L.; William A. Terwedo, individually and as business agent of Common Laborers Union, Local 1160, A. F. L.; Common Laborers Union, Local 1160, A. F. L.; Burdeen A. Hoiland, individually and as president of Plumbers and Steamfitters Union, Local 338, A. F. L.; Plumbers and Steamfitters Union, Local 338, A. F. L.; Leo R. Otto, individually and as business agent of Carpenters Union, Local 1176, A. F. L.; Carpenters Union, Local 1176, A. F. L.; W. W. Murrey, as president of North Dakota State Federation of Labor, Defendants and Appellants.
    No. 7547.
    Supreme Court of North Dakota.
    Dec. 5, 1955.
    Rehearing Denied Jan. 17, 1956.

      Lanier, Lanier & Knox, Fargo, for appellants. Erwin A. Peterson, St. Paul, Minn., of counsel.
    Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for respondents.
   BURKE, Chief Justice.

In this action for an injunction, a temporary injunction was issued enjoining the defendants and all persons acting for the defendants, either directly or indirectly, from picketing and bannering the Front Street project in Fargo upon which the plaintiff, Northern Improvement Company, was working. The Northern Improvement Company is a corporation engaged in general contracting and at the time the temporary injunction was issued was engaged in repaving Front Street of Fargo pursuant to contract. The cost of the project was to be defrayed by contributions from the United States, the State of North Dakota and the City of Fargo.

The principal defendant, Ted St. Peter, is the secretary and treasurer of the General Drivers, Helpers, Warehousemen, Dairy Employees and Inside Workers Union, Local 116 A. F. L. The other defendants are officers or agents of other labor organizations.

Ted St. Peter asked the plaintiff to bargain with his union, Local 116 A. F. L., in connection with wages and working conditions on the Front Street project. The plaintiff refused to bargain upon the ground that the union did not represent a majority of its employees on the project and that therefore it could not lawfully bargain with such union. The plaintiff suggested on July 12, 1955, that its employees vote by secret ballot to determine what bargaining agent, if any, such employees wished to represent them. The union refused to agree to an election. On July 14, and 15-, 1955, individuals who were not employees of the plaintiff picketed the Front Street project, carrying signs stating that the Northern Improvement Company refused to bargain with Fargo Unions. During picketing, work on the project was stopped because union employees of other contractors and subcontractors on the project refused to cross the picket lines.

On July 22, 1955, the district court made its order granting the temporary injunction and the defendants have appealed from that order. Their attack is twofold. First, they claim that the state court was without jurisdiction to order the injunction, the subject matter having been preempted by the Federal Government under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.; and second, that the injunction violates the first amendment to the Constitution of the United States in that it denies the defendants freedom of speech.

The first question to be decided is whether the plaintiff, as the employer upon the Front Street Project, was subject to the National Labor Relations Act. The answer to that question depends upon whether the project, or the interference with the progress of the project had any substantial effect upon interstate commerce. If interstate commerce was substantially affected, the Labor Relations Act applied.

Front Street in Fargo through its entire extent is an integral part of Federal Highways 10 and 52 and a substantial part of the cost of its resurfacing was being paid for by the United States. The total cost of the project was to be $736,000. A subcontract for the electrical work upon the project, in a sum in excess of $200,000 was let to a Minnesota Corporation. All sand and gravel for the project, of the total value of $35,000 had been shipped or was to be shipped interstate from Minnesota. Other materials in substantial amounts for use in the completion of this project, had been or would be shipped from outside the State of North Dakota. They included oil, gasoline, steel and cement. In fact practically all the raw and manufactured materials used or to be used on the project were to come from without the State of North Dakota.

The purpose of establishing and building federal highways is to facilitate the movement of interstate commerce. Delay in the completion of such projects caused by stoppage of work thereon would obviously have some effect upon the flow of interstate commerce. The National Labor Relations Board has held that this effect alone is sufficient to bring the employer of labor upon a federal highway project within its jurisdiction, Strong Co. and International Association of Machinists, 86 NLRB No. 100, In re Brown-Ely Co. & International Association of Machinists, 87 NLRB No. 5.

The fact that raw and manufactured materials in very substantial amounts and of substantial value have been or must be shipped in interstate commerce in order to complete the project also brings the project within the jurisdiction of the Labor Board. One of the purposes of the National Labor Relations Act was to prevent industrial strife or unrest from “materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce.” 29 U.S.C.A. § 151, Paragraph 1. In National Labor Relations Board v. Denver Building & Const. Trades Council, a case which involved the stoppage of work upon a building contract, where the contractor purchased a substantial portion of the materials used, from without the state, the Supreme Court of the United States approved a finding by the Labor Board “that any wide spread application of the practices here charged might well result in substantially decreasing the influx of materials into Colorado from outside the State”, and also stated; “The fact that the instant building, after its completion, might be used only for local purposes does not alter the fact that its construction, as distinguished from its later use, affected interstate commerce.” 341 U.S. 675, 71 S.Ct. 943, 949, 95 L.Ed. 1284. This principle was affirmed in International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299.

It is apparent from the evidence in this case that the stoppage of work on the Front Street project will stop or delay “the influx of materials” in the State of North Dakota. The evidence thus establishes that the project and the contractor thereon are subject to the Labor Relations Act.

The controversy between the employer and the defendants is a simple one. The unions demanded the right to bargain for the employer’s employees and the employer refused. The picketing was for the purpose of coercing the employer to bargain. There is an allegation in the complaint that the purpose of the picketing was to induce the employer to violate the state law by coercing its employees to join a union. There is, however, no evidence to sustain this allegation. It is dear under the evidence that either the employer or the defendants had engaged in an unfair labor practice under the Labor Relations Act. This act covers the whole field of collective bargaining where interstate commerce is affected. It sets forth the conditions under which the refusal of an employer to bargain collectively and coercion by a labor union to compel an employer to bargain constitute unfair labor practices. 29 U.S.C.A. § 158. Whether, in the circumstances, the picketing constituted an unfair labor practice, was a matter for the Labor Relations Board to- decide. If it found that the picketing was an unfair labor practice it had the jurisdiction to issue a “cease and desist” order or to apply to the United States Courts for an injunction. 29 U.S.C.A. § 160(e).

It is contended by the plaintiff, however, that the state courts also had jurisdiction to enjoin the picketing because of the violation of a specific state statute. This statute is Section 34-0912, 1953 Supp. to NDRC 1943. It provides:

“In any strike in this state it shall be illegal for any person other than an employee of the particular establishment against which such strike is called or a local resident member of the union representing the employees of such establishment to picket in aid of such strike. Picketing in violation of this section is hereby declared to be unlawful and against the peace and dignity of the state and shall be subject to restraint by the district court of the county where such picketing occurs.”

There are several reasons urged by the defendants as to why this statute does not apply to the facts of this case. The most important one, however, is that where interstate commerce is affected and Congress has enacted federal legislation covering the same field as state legislation, the state legislation must give way to the federal. In a case which had its origin in Pennsylvania and in which the facts were analogous to those in the instant case, the Supreme Court of the United States stated: “Congress has taken in hand this particular type of controversy where it affects interstate commerce”, and after pointing out the conflicts that might arise out of concurrent jurisdiction concluded that “there is no indication that the statute left it open for such conflicts to arise” and that therefore the state court was without jurisdiction. Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776, 346 U.S. 485, 74 S.Ct. 161, 165, 98 L.Ed. 228. See also Building & Const. Trades Council v. Kinard Construction Company, 346 U.S. 933, 74 S.Ct. 373, 98 L.Ed. 423; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 54-6.

It is thus settled by the highest federal authority that in cases, such as the instant one, the state courts are without jurisdiction. Having reached this conclusion it is unnecessary to consider the other issues in the case. The order of the District Court granting the injunction is therefore reversed and the injunction issued is ordered to be dissolved.

GRIMSON, JOHNSON, SATHRE and MORRIS, JJ., concur.