The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1921-03-12


Justice Grace dissented and re-
lg opinion.
l. Pursuant to constitutional and
statutory enactments, the Bank OF
North Dakota, as an agency of the
sovereign power, engaged in the bank
ing business, has a distinct status sep
arate and apart from that of the state
itself. This state permits it to .Mnc-
ton as a distinct and separate agency
OF the sovereign power.
2. (a) A garnishment proceeding is
an action. 1T creates no specific lien.
1t seeks to hold the garnishee to a
personal liability, and judgment. de-
pendent upon his liability to the de-
fendant. 1t is remedy separate and
distinct from attachment or execu-
tiOn.
(b) Section S177, C. L. 1913, which
relates to executions against the state
has neither reference nor application
to- direct garnishment proceedings
ancillay to suit against the Bank Of
North Dakota. ..,....
(c) Where q county has instituted
action to recover deposits made in the
Bank OF North Dakota and also gar
nishment proceedings against various
state and national banks by reason
OF redeposits made by the Bank Of
North Dakota in such banks, it is held,
pursuant to the express provisions of
Sec. %, Chap. 147, Laws 1919 (Bank
Of North Dakota act, that such gar
nishment proceedings are proper.
From an order refusing to vacate
sgarnishment proceedings in Sargent
county the defendant has appealed.
In his decision Justice Bronson sets
cut that there are two fundamental
questions involved: First, the status
OF the Bank of North Dakota, and.
second, the right to avail of garnish.
ment process in proceeding against
it. 'a. a.. ..
THE fact that an agency is a pub
lie institution or functions as an ag1n-
cy OF the sovereign power does not
necessarily mean that its engage.
ments of the state and that no assault
by action may be made upon this
agency by reason of the inhibition
against suing state without its
consent" says Justice Bronson. "The
state may be prescribed that such
agency shall be subject to action.
Judge Bronson, relating the statutes
creating the Bank of North Dakota,
also refers to the case in which Carl
Kostzky. former state auditor, tried
to examine the bank. stating that the
supreme court at that time held that
the matter was one of legislative in
tention and the bank had given this
power to the state examiner, and re-
calling the decision which said "The
bank while, publicly owned. does have
certain powers which have hereto
fore been exercised and enjoyed exclu
siyely by privately owned banks"
Justice Bronson holds the deposits
of counties and municipalities as we'll
as of private individuals in the banH
are not ,s>ate public funds! Regalu
ing the bank act he said:
1T would appear IN the light of the
principles above discussed that this
bank act in question has been drawn
with intelligent discrimination in Or
der to avoid constitutional objections
that might be raised If the state was
directly engaged as the state in the
operation of this bank, for it is plain
ly evident that serious constitutional
objections to the operation and main
tenance of this bank might be raised
if the Bank of North Dakota should be
treated as the state itself and be sub
jected to the constitutional provisions
concerning the creation Of indebted
ness either present or future and the
limitations of Indebtedness prescribed
in the constitution
1.-The fact that the act provides that
all deposits in the bank are guaranteed
Dy the state does not show an inten-
ton that the operation of the bank is
direct engagement of the state as
such. Rather it discloses an inten'
ton to create distinct status for the
bank apart from the state itself"
In concluding he said: 1T is &C.
cordingly the opinion Of this court
that, through the plain provisions Of
Section % of the Bank Act, the gar
nishment process as herein instituted
is available in an action against such
bank"