McIntyre v. State Board of Higher Education

*632 Burke, J. The plaintiffs in this case, Owen McIntyre, Margaret McIntyre, Mary Alice McIntyre and Eose McIntyre, are father, mother, and daughters respectively. In September, 1939, the two daughters, Mary Alice and Eose, registered as students at the Valley City State Teachers’ College. At the time they registered they were *633 presented with a bill for matriculation and other incidental fees for the first quarter of the school year. This bill was paid without protest. At the time of her registration, Eose was enrolled with the National Youth Administration and was receiving from this source the sum of $10 per month to help defray the cost of her education. In December, 1939, a bill for matriculation and incidental fees for the winter quarter of the school year was presented to plaintiff's. This bill, they refused to pay. About the same time, the enrolment of Eose with the National Youth Administration was canceled. Mary Alice and Eose, however, continued in school. Plaintiffs later attempted to make payment of the fees for the winter quarter with a check upon which the words “for tuition” were inscribed. This check the school authorities refused to accept upon the ground that the inscription incorrectly stated the nature of the charges. Mary Alice and Eose nevertheless continued in school until the end of the summer term of 1940, when they voluntarily left. Plaintiffs brought this action in December, 1939, seeking injunctive relief against the State Board of Higher Education and the President of the State Teachers’ College at Valley City. Specifically, they demanded (1) that the rules and regulations of the State Board of Higher Education which required the payment of matriculation and other incidental fees, be adjudged null and void; (2) that the defendants be enjoined from collecting from the plaintiffs the matriculation and other incidental fees for the quarter commencing in December, 1939; and, (3) that the order of the defendant canceling the enrolment of Eose in the National Youth Administration be vacated and that the court order her immediate reinstatement therein. As a basis for the invocation of injunctive relief, the plaintiffs alleged (1) that the rules and regulations of the State Board of Higher Education pertaining to matriculation and other incidental fees are violative of the provisions of § 148, Constitution of North Dakota; (2) that if such fees were not paid by the plaintiffs they would be expelled from said Teachers’ College, and deprived of the benefits of a free education; and, (3) that the defendant President of the State Teachers’ College wrongfully, unlawfully, and arbitrarily procured the cancelation of the assistance which the National Youth Administration had been furnishing to Eose solely because she refused to obey said defend *634 ants’ unlawful orders that she move into one of the college dormitories in which the rent was beyond her ability to pay. The judgment of the trial court ruled that the regulations of the State Board of Higher Education which established matriculation and other incidental fees did not violate the Constitution, and dismissed the action. Plaintiffs appealed from the judgment and the case is here for a trial anew. Wo must therefore reinvestigate the law and the facts and “apply what we deem to be the law to the facts as disclosed'by the record.” Buckingham v. Flummerfelt, 15 ND 112, 115, 106 NW 403; Englert v. Dale, 25 ND 587, 142 NW 169. At the trial of the case in district court in September, 1940, plaintiffs attempted to establish facts sufficient to justify the relief demanded. At that time, however, it appeared not only that Mary Alice and Bose had not been denied the privilege of attending the Teachers’ College by reason of nonpayment of fees for the school quarter commencing in December, 1939, but that they had also been permitted to attend during the spring and summer quarters of 1940, at the end of which time they voluntarily left the school. None of the plaintiffs testified. The sole testimony upon this question is that of the defendant President Cox whose examination is in part as follows: “Q. Now ordinarily if students don’t pay their fees you remove them from school, don’t you ? “A. That very rarely happens. Indeed, I can’t recall a single instance of that kind since’I have been at Valley City. “Q. Well, because they paid, isn’t that the reason? “A. Well, many have not paid. “Q. But anyhow, it is the object of your school to collect these fees from students ? “A. Yes, sir. “Q. Now you still hold these charges against these two girls ? “A. Yes, sir. “Q. And if they lose out in this lawsuit it is your expectation to collect for them. “A. We shall attempt to collect them; yes, sir.” It is clear that at the time of the trial the plaintiffs had enjoyed in full all of the privileges which they had alleged would be denied them upon nonpayment of fees — and that the sole controversy remaining be *635 tween the parties with respect thereto was whether or not the plaintiffs were indebted to the school. In so far as plaintiffs’ allegations relating to the reasons and motives for the discontinuance of National Youth Administration aid to Rose McIntyre are concerned, we think it sufficient to say that the record affirmatively and without dispute shows that these allegations are wholly unfounded. Plaintiffs therefore failed to establish the alleged factual premises of irreparable injury upon which they relied to justify injunction. At the close of the testimony, all that remained in the lawsuit was a collateral issue of debt and an otherwise academic quandary as to whether certain rules and regulations of the State Board of Higher Education violated the Constitution. Both at the trial of this action and upon this appeal, counsel for all parties were concerned principally with the issue of whether or not the rules and regulations of the State Board of Higher Education imposing incidental fees were invalid and unconstitutional or otherwise. Doubtless all parties would like to have this court decide that question. Mere anxiety of parties and their consent are not sufficient to vest this court with jurisdiction to decide a constitutional question. The function of this court is to determine actual controversies between litigants. State ex rel. Olsness v. McCarthy, 53 ND 609, 207 NW 436. As was said by Judge Christianson in Langer v. State, 69 ND 129, 142, 284 NW 245: ... it goes without saying, litigants cannot by consent, either passive or express, dispense with -necessary parties; or confer upon a person, who does not have a sufficient interest in a controversy to entitle him to bring suit, the right to sue, or transform a controversy that is not justiciable into one that is.” See also State ex rel. Amerland v. Hagan, 44 ND 306, 175 NW 372, with regard to the “friendly test case” and 3 Dakota L. Rev. 273. Before we may consider the constitutional question in this case, therefore, it must appear from the pleadings and the evidence that plaintiffs would be entitled to relief by injunction in the event their contention that the incidental fees were unconstitutional should be correct. If they would not be entitled to the relief demanded in any event, then the constitutional question, not being decisive of any issue, is *636 moot and may not be decided. King v. Baker, 69 ND 581, 288 NW 565, 125 ALR 730. What the prerequisites to injunctive relief are is well settled. In order to be entitled to an injunction, plaintiffs must establish some actual or threatened and irreparable injury to their rights for which there is no adequate legal remedy. 28 Am Jur 370, Injunctions, § 182; Lockwood v. Baird, 59 ND 713, 231 NW 851; King v. Baker, supra; 3 Dakota L. Rev. 273. The right which plaintiffs asserted they were seeking to protect in this case was the right of the daughter plaintiffs to attend school without the payment of certain fees. As has already been pointed out, the record not only fails to show an actual or threatened injury to that right, but it affirmatively shows a full enjoyment thereof. True, there remains the question of whether or not the plaintiffs are indebted to the school on account of such fees. That question, however, is not directly at issue in the case. Defendants did not by cross complaint or counterclaim demand judgment on that account. In the event that at some future time the school authorities should bring suit to collect the fees, plaintiffs’ right to defend in that action is an adequate legal remedy. 28 Am Jur 238, Injunctions. Since plaintiff failed at the trial of this case to establish any basis for injunctive relief, the action should have been dismissed for that reason and the question of the constitutional validity of the incidental fees should not have been decided. The case is therefore remanded to the district court with directions to enter a new judgment of dismissal in accordance with this opinion. Christianson and Nuessee, JJ., and Gronna, Dist. J., concur. Mr. Justice Morris, deeming himself disqualified, did not participate, IIon. A. J. Gronna, Judge of the Fifth Judicial District, sitting in his stead by request.