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The nonpartisan leader. [volume] (Fargo, N.D.) 1915-1921, June 30, 1919, Image 4

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn89074443/1919-06-30/ed-1/seq-4/

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By Special Correspondent
HE constitutionality of the North
Dakota industrial program was
sustained by Judge C. F. Ami
don of the United States dis
trict court at Fargo when, in a
sweeping decision, he dismissed
the suit of the 42 so-called "tax
payers" who asked for an in
junction ,±0 render inoperative
the industrial program. The court ruled against
the plaintiffs on the essential points and sustained
the right of the people to go into business for
The suit was brought by 42 taxpayers. They
charged in the complaint that the use of state
funds and the levying of taxes to establish the
state bank and state-owned mills,- elevators and
packing houses is a use of the taxing power for
a private purpose, and when they are compelled
to pay taxes for such a purpose they are deprived
of their property without due process of law. De
fendants moved to dismiss the bill on the ground
that the court was without jurisdiction.
Two elements were essential to jurisdiction, the
court held:
1. That the amount in controversy in the suit
exceeds $3,000.
2. That the bill makes out a case arising under
the federal Constitution.
The court ruled against the plaintiff on both
The question whether the amount in controversy
is over $3,000 is a ques
tion of practice, Judge
Amidon said. "Plaintiffs
claimed that the alleged
bond issue was the amount
in controversy. The amount
of taxes which the plain
tiffs would be compelled
to pay is the amount in
controversy," the decision
held, "and many decisions
of the supreme court sus
tain this ruling. As the
bill fails to make any
showing as to the plain
tiff's personal interest in
the suit, the court rules
that there is a failure to
show the first ground of
On the question of
whether the program of
the League involves a use
of the taxing power for a
private purpose the court
holds the question of what
constitutes a public pur
pose is primarily for the
state to decide and that
this is especially true when the people of the state
have repeatedly amended their constitution, as the
people of this state have done, to authorize the
taxes complained of.
"The only cases in which laws have l)een held
invalid by the United States supreme court are
those in which cities have issued bonds aB a mere
gratuity to private interests to induce them to
locate in the city. Whenever bonds have been
issued to establish industries to be owned by the
state or city, as North Dakota proposes to do, such
a use of the taxing power has always been sus
tained by the supreme court," says the court. "The
complaint is dismissed upon both grounds,' with
The decision says, in part:
"Plaintiffs must show a personal interest amount
ing to $3,000 in order to give this court jurisdic-.
tion, and as no such showing is made in the present
bill, the jurisdiction of the court as a federal court
"The other jurisdictional element presents the
question, whether the bill shows a case arising un
der the fourteenth amendment. That depends on
whether the purpose for which the laws here as
sailed seek to use the taxing power is private or,
public. When a state enters anew field of taxation,
as North Dakota has in these laws, that question
is always raised. It was urged against laws to es­
E E 'r
FS &
Court Holds People Supreme Tribunal
Amidon, in Holding North Dakota Program Constitutional, Declares
Too Many Decisions Defeated Popular Will
tablish public schools, and publicly owned water,
gas and electric plants, with the- same vehemence
as it is now urged against the present laws. The
line of legislative power has been steadily advanced
as society has come to believe increasingly that its
welfare can best be promoted by public as distin
guished from private ownership of certain business
enterprises. Laws which at one time were held
invalid have at a later period been sustained by
the same court. No judge can investigate judicial
decisions rendered during the past 10 years without
being impressed with the rapid extension of state
activity into fields that were formerly private. The
twilight zone that separates here permissible from
forbidden state action is broad. Business which
will seem to one court to be public will seem to
another to be private.
"What may be done by the state to protect
its people and promote their welfare, can not
be declared by a prior reasoning. New evils
arise as the result of changing conditions. If
the state remains static while the evils that
afflict society are changing and dynamic, the
state soon becomes wholly inadequate to pro
tect the public. The state must be as free to
change its remedies as the evils that cause
human suffering are to change their forms."
Regarding the constitutionality of the law, Judge
Amidon cites the case of Lowell vs. Boston, in
which John A. Lowell and nine other taxpayers
brought suit to restrain the city from issuing
$20,000,000 bonds, as authorized by the state, for
When North Dakota begins' to manufacture its own flour in its own mills from wheat in its own ele
vators and grown on its own soil, it will be asked to prove that the people are as efficient as a private
corporation. The mill will be judged by the standards of the finest, largest, best-equipped mills in
America its product will be tested in comparison with that of these mills, such as the Washburn
Crosby plant, shown above. The people of North Dakota do not fear the test. They will use the most
modern methods and turn out flour equal to any in the world, for the ideal of democ
racy will be the motive force in place of the ideal of profit.
a fund to make loans to parties on mortgages to
aid, in restoring the part of the city that had been
destroyed by fire in 1872. The suit was brought
under the Massachusetts constitution, which con
tains a provision like that of the fourteenth amend
ment of the federal Constitution, protecting every
individual "in the enjoyment of Iris life, liberty and
property, according to law." The court upheld the
plaintiff's contention, and it has been the precedent
for many other similar decisions since that time,
until the people of the state passed an amendment
sweeping away this constitution.
"The decision had stood for more than half a
century as an authority supporting scores of de
cisions nullifying laws to correct evils from which
men, women .and children are suffering," the de
cision says, "and furnishing reasons to even more
congresses, legislatures and city councils why other
laiwsVshould not be passed to correct such evils.
And now that the real suprem^ tribunal of Massa
chusetts, the people of that commonwealth, has
swept away all these judicial precedents in that
state,, what do we'say has happened? This: "Che
court was right all the time but the people have
now amended their constitution and granted the
legislature power to do what the court said they
couldn't do before, and so the legislature may here
after enact needful laws.' But does that state the
real truth? I. think not. Is it not more true to
say that the people of Massachusetts have cor
rected, if not rebuked, the judges of their supreme
judicial court? Have not they really said to their
judges: 'You have been wrong all this half cen
tury. We never intended those general words to
mean what you have been saying they mean and we
wish you wouldn't use them any .more to protect
practices that have been proven to be economically,
morally and legally unsound and nullify laws
passed for their correction' Is not that the real
interpretation of what has happened, not only in
Massachusetts but in the adoption in nearly every
state of the Union in the last 15 years of consti
tutional amendments to correct decisions made un
der the general provisions which forbid a depriva
tion of life, liberty or property without due process
of law?
"No court has been so insistent and emphatic
as the supreme court of the United States against
the abuse of the power to declare laws unconsti
tutional under the general language of the four
teenth amendment.
"1. It has restated the scope of the police pow
er. Prior to 1885 that power was restricted bji
American courts to the public safety, health and
morals. The supreme court holds that it embraces
also laws intended to promote public prosperity
and general welfare.
"2. The courts may not concern themselves with
the policy of legislation or its economic wisdom or
folly. Those are considerations belonging exclu
sively to the legislature.
"3. A law can not be set aside 'because the ju- ij
diciary may be of the
opinio that the act will
fail of its purpose or be
cause it is thought to be
an unwise exertion of the
authority vested in the
legislative branch of the
"In the light of these
established doctrines let
us look at some of the
general facts that condi
tion this case.
"The people of "North
Dakota are farmers, many
of them pioneers. Their
life has been intensely in
dividual. They have never
been combined in corpo
rate or other business or
ganizations to .train themr
in their common interests
or promote their general
welfare. In the main they
have made their purchases
and sold their products as'
individuals. Nearly all
their livestock and grain
is shipped to terminal
markets at St. Paul, Minneapolis and Duluth. There
theBe products pass into the hands of large com
mission houses, elevator and milling companies and
livestock concerns.
"These interests are combined not only, in cor
porations, chambers of commerce, boards of trade
and interlocking directorates but in the millions
of understandings which arise among men having
common interests and living through long terms
of years in the daily intercourse pf great cities.
These common understandings need not be em
bodied in articles of incorporation or trust, agree
ments. They may be as intangible as the ancient
•powers of the air.' But they are as potent in the
economic world as those ancient powers were
thought to be in the affairs of men. It is the
potency of this unity of life of men dwelling-to
gether in daily intercourse that has -caused all na4
tions thus far to be governed by cities.
"As North Dakota has become more thickly
settled and the means of intercourse have in
creased the evils of the existing marketing sys
tem have been better understood. No single
factor has contributed as much to that result
as the scientific investigations of the state's
agricultural college and the federal experts
connected with that institution. That work
has been going on for a generation and has
been carried to the homes of the state by ex
tension workers, the press and the political dis
cussion of repeated political campaigns. The
g)Pe°P^ have thus come to believe that the evils

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