# Appendix — Vetter v. City of Bismarck

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0778%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1201

## Text

'~OR

Appellee,
JULIE VETTER
Appellant,
ON APPEAL FROM THE
SUPREME COURT OF
NORTH DAKOTA
JOINT APPENDIX
Dated: March 22, 1988
HUGH P. SEAWORTH JULIE VETTER

City Attorney

IN THE
Supreme Court of the United States

OCTOBER TERM, 1987

CITY OF BISMARCK

In Propria Persona

P.O. Box 5503 917 Constitution Drive

Bismarck, ND
(701) 222-6570

58502 Bismarck, ND 58501
(701) 258-3987

revs
eeV¥

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

CITY OF BISMARCK

Vs

JULIE VETTER

ON APPEAL FROM THE
SUPREME COURT OF
NORTH DAKOTA

JOINT APPENDIX

Dated: March 22, 1988

Appellee,

Appellant,

HUGH P. SEAWORTH JULIE VETTER

City Attorney In Propria Persona
P.O. Box 5503 917 Constitution Drive
Bismarck, ND 58502 Bismarck, ND 58501

(701) 222-6570 (701) 258-3987

TABLE OF CONTENTS

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JUDGEMENT OF CONVICTION
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MOTION TO DISMISS IN
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CITY OF BISMARCK’S BRIEF IN
RESISTANCE TO THE MOTION
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ORDER DENYING THE MOTION
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ORDER AND JUDGEMENT OF
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APPELLANT’S BRIEF IN THE SUPREME
COURT OF NORTH DAKOTA ..................

APPELLEE’S BRIEF IN THE SUPREME
COURT OF NORTH DAKOTA ...................

JUDGEMENT OF THE SUPREME COURT
Se I CME OR, wancreerssecncceseserscceccess

PETITION FOR REHEARING .....................

DENIAL OF THE PETITION ;
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NOTICE OF APPEAL TO THE
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§/14/87

5/14/87
7/14/87

7/14/87

7/17/87

7/30/87
8/04/87

8/04/87

9/04/87
9/11/87
9/11/87
10/09/87

11/17/87

11/19/87
12/02/87
12/29/87
01/05/88

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DOCKET ENTRIES

JUDGEMENT OF CONVICTION -
CITY OF BISMARCK

NOTICE OF APPEAL TO COUNTY COURT

_ MOTION FOR DISMISSAL

BRIEF IN SUPPORT OF MOTION
FOR DISMISS

BRIEF IN RESISTANCE TO DEFENDANT'S
MOTION FOR DISMISSAL

ORDER DENYING MOTION TO DISMISS
ORDER AND JUDGEMENT

NOTICE OF APPEAL TO STATE
SUPREME COURT

STATEMENT OF CASE AND STIPULATION
APPELLANT BRIEF

APPELLANT APPENDIX

APPELLEE BRIEF

APPEARANCES: SUBMITTED ON
BRIEFS FILED

UNANIMOUS OPINION LEVINE
PETITION FOR REHEARING
ACTION BY SUPREME COURT DENIED

NOTICE OF APPEAL TO US.
SUPREME COURT

ill

ot

STATE OF NORTH DAKOTA
County of Burleigh, City of Bismarck

In Municipal Court
Before William Severin, Municipal Judge

THE CITY OF BISMARCK )
)

Vv. )

)
JULIE VETTER ) COMPLAINT
917 Constitution )
Bismarck, ND )
)

Defendant

Greg Zenker, being duly sworn, says that on the 19th day of
March, A.D. 1987, at the City of Bismarck, in said County, the
above named defendant did commit the offense of no dog license
in violation of ordinance 3-03-01, within the limits of the said
City of Bismarck, as follows, to-wit: That at the said time and
place the said defendant did wilfully and unlawfully keep,
maintain or have in custody or under control any dog under the
age of six months which is not licensed, contrary to the City
Ordinances of the said City of Bismarck, in such case made and
provided, and against the peace and dignity of the City of
Bismarck.

WHEREFORE, Complainant prays that the defendant Julie
Vetter may be arrested and dealt with according to law.

Subscribed and sworn to before me this 23rd day of March,
1987.

Municipal Judge

ii

STATE OF NORTH DAKOTA
County of Burleigh, City of Bismarck

In Municipal Court

CITY OF BISMARCK, )
Plaintiff, )
)
VS. ) MOTION TO
) AMEND COMPLAINT
JULIE VETTER, ) CR 87-3660
Defendant. )

The City of Bismarck moves to amend the complaint against
defendant to strike the second “under” in the charging portion
of the complaint and insert the word “over” in lieu of. This
motion is made pursuant to Rule 3(b) of the North Dakota Rules
of Criminal Procedure. No additional offense is being charged.

This amendment clarifies the fact that defendant is charged
with having a dog over six months of age without a dog license,
not a dog under six months of age.

Attached is a copy of the amended complaint.

Dated this 6th day of April, 1987.

PAUL H. FRAASE
Assistant City Attorney
P.O. Box 5503
Bismarck, ND 58502

CERTIFICATE OF SERVICE

I certify that the above Motion was mailed to Julie Vetter in
a stamped envelope on April 6, 1987.
Dated this 6th day of April, 1987.

PAUL H. FRAASE

ee

STATE OF NORTH DAKOTA
County of Burleigh, City of Bismarck
In Municipal Court
City of Bismarck

CITY OF BISMARCK,

JUDGMENT OF
CONVICTION

VS.

woe eee ee

JULIE VETTER

On the 7th day of May, 1987, the above-named defendant came
into court, and this being the date set by the court for pro-
nouncing sentence upon conviction of the defendant for the crime
of no dog license following his ( ) plea of guilty (or) (X)
conviction after plea of not guilty and trial;

And the court having considered all relevant factors prior to
imposing sentence and having determined that sentence should
be imposed, the defendant having given no justifiable reason for
withholding pronouncement of sentence;

NOW, THEREFORE, IT HEREBY IS ADJUDICATED
THAT YOU

( ) Serve days in the Burleigh County jail;
(X) Pay a fine in the amount of $25
( ) Pay costs in the amount of $

IT IS FURTHER ORDERED, HOWEVER, THAT
days of the imprisonment and Dollars of the fine
and/or costs be suspended for a term of
upon the conditions that you violate no criminal laws during the
period of probation and that you and obtain a dog license by
5/11/87 at 5:00 p.m.

BY THE COURT:

Signed: William Severin
Municipal Judge

ENTERED in court minutes
this 7th day of May, 1987.

Clerk of Court

A.
. >

STATE OF NORTH DAKOTA
County of Burleigh

In Burleigh County Court
Case No. 87-2007

CITY OF BISMARCK,
Plaintiff,

MOTION FOR
DISMISSAL

VS.

JULIE VETTER,
Defendant.

ee

COMES now the defendant, in propria persona, and moves
the Court as follows:

Defendant moves this Court to dismiss the complaint on the
grounds that Bismarck City Ordinance, Section 6-84 is unconstitu-
tional, and thus is not a public offense.

Dated this 14th day of July, 1987.

JULIE VETTER
917 Constitution Drive
Bismarck, ND 5850]

BRIEF IN SUPPORT OF MOTION TO DISMISS

This motion is made pursuant to the N.D.R. Crim. P., Rule
12. Defendant nas a right to keep and own a dog and such a right
is enumerated in the preamble to the Constitution of the United
States, and as such right is enumerated in the preamble to the
Constitution of North Dakota.

The government grants a title of nobility when it takes away
a right and grants it back as a privilege. Horst v. Moses,
48 Ala. 142 (Ala. 1872).

——eaaaa

Bismarck City Ordinance, Section 6-84, takes away the right
to own a dog and grants that right back as a privilege subject
to one having a dog licensed.

Bismarck, City Ordinance, Section 6-84, grants a title of
nobility as it takes away the right to keep, maintain, or have in
custody or control a dog and grants that right back as a privilege.

The State is forbidden to grant any title of nobility. United
States Constitution, Article I, Section 10, Clause 1. Downes
v. Bidwell, 182 U.S. 244, 277 (1901); Gaines v. Buford, (1 Dana)
31 Ky. 481, 500 (Ky. 1833). And what the State can not do directly
and can not authorize, it can not do indirectly or authorize
through any of its agents such as the City of Bismarck.
Downes v. Bidwell, 182 U.S. 244, 291-292, 359-360, 383 (1901);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-177, (1803).
And, an act which the Constitution clearly prohibits is beyond
the power of the City, however proper it may be as a police regula-
tion, but for the prohibitory mandate of the Constitution.
State v. Giessel, 31 N.W.2d 626, 631 (Wisc. 1948); State v.
Cromwell, 9 N.W.2d 9i4, 918 (N.D. 1943); People v. Wilson,
281 N.E.2d 740, 744 (Ill. A. 1972); Central Markets West Inc.
v. State, 180 N.W.2d 880, 882 (Neb. 1970); State v. West
Virginia Racing Commission, 55 S.E.2d 263, 270 (W.V. 1949);
N.P. Railway Co. v. Warner, 45 N.W.2d 196, 203 (N.D. 1950);
State v. Gronna, 59 N.W.2d 514, 532 (N.D. 1953).

Wherefore, Defendant prays this Court to dismiss the
complaint and drop all charges as the ordinance is
unconstitutional.

Dated this 14th day of July, 1987.

JULIE VETTER
917 Constitution Drive
Bismarck, ND 58501

CERTIFICATE OF SERVICE

I certify that a copy of the above document was mailed to:

Bismarck City Attorney
221 North Sth Street .
Bismarck, ND 58501

Dated this 14th day of July, 1987.

JULIE VETTER

EB

STATE OF NORTH DAKOTA
County of Burleigh

In County Court
Case No. 87-2007

CITY OF. BISMARCK, )
Plaintiff, )
) BRIEF IN RESISTANCE

VS. ) TO DEFENDANT’S
) MOTION FOR DISMISSAL
JULIE VETTER, ) No.

Defendant. )

ee

Defendant is charged with the offense of owning or keeping
an unlicensed dog within the City of Bismarck, in violation of
city ordinance 3-03-01. Defendant seeks dismissal of the
complaint on the grounds the ordinance is unconstitutional.

FACTS

The facts are not disputed. Defendant (with her husband) is
the owner or keeper of a dog which is more than six months of
age. The dog is kept at defendant’s home at 917 Constitution in

—- the City of Bismarck. Defendant has not applied for a license
for the dog for 1987, nor has a license been issued by the city.

LAW AND ARGUMENT
City ordinance 3-03-01 reads as follows:

It is unlawful for any person within the city to
keep, maintain or have in custody or under
control any dog over the age of six months which
is not licensed and inoculated against rabies.

-8-

The authority of municipalities in the State of North Dakota
to license and regulate dogs is found in subsection 22 of N.D.C.C.
section 40-05-02, which grants to municipalities the power:

22. Dogs. To license dogs and to regulate the keep-
ing of dogs including authorization for their
disposition or destruction in order to protect the
health, safety and general welfare of the public.

Any question concerning the constitutionality of ordinances
providing for the licensing of dogs has long since been resolved,
in this state and elsewhere. It is well settled that the legislature,
under the police power, may regulate the keeping of dogs.
City of Dickinson v. Thress, 290 N.W. 653, 655 (N.D. 1940),
citing Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 702,
17 S.Ct. 693, 41 L.Ed. 1169, 1171. That authority may be
delegated to political subdivisions. Thress, supra, at 655, citing
2 Am. Jur. p. 719. In Thress, the North Dakota Supreme Court
held that a city ordinance requiring the licensing of dogs is a con-
stitutional exercise of the city’s powers. Id. at 659.

CONCLUSION

City ordinance 3-03-01, which requires the licensure of all dogs
over the age of six months that are kept in the city, is a constitu-
tional exercise of power expressly conferred upon municipalities
in the state. A similar ordinance has previously been upheld by
the North Dakota Supreme Court.

Respectfully submitted this 15th day of July, 1987.

HUGH P. SEAWORTH
City Attorney

‘ P.O. Box 5503
Bismarck, ND 58502

CERTIFICATE OF SERVICE

I certify that on this date a copy of the foregoing document
was mailed, by regular mail, postage prepaid to:

Julie Vetter
917 Constitition Drive
Bismarck, ND 58501

Dated this 15th day of July, 1987.

HUGH P. SEAWORTH

-10-

STATE OF NORTH DAKOTA
County of Burleigh

In County Court

CITY OF BISMARCK, )
Plaintiff, )
)

VS. ) CASE NO. 87-2007
)
JULIE VETTER, )
Defendant. )

ORDER DENYING MOTION TO DISMISS

The defendant has requested that the complaint in this matter
be dismissed on the grounds that the ordinance under which she
is charged is unconstitutional.

The licensing of dogs is a legitimate exercise of police power.

The motion will be DENIED.

Dated this 29th day of July, 1987.

GAIL HAGERTY
Burleigh County Judge

GH:sf

fh.

STATE OF NORTH DAKOTA
County of Burleigh

In County Court

CITY OF BISMARCK,

Plaintiff, ORDER AND

JUDGMENT
No. 87-2007

)

)

)

VS. )

)

JULIE VETTER, )
Defendant. )

Defendant appealed a conviction entered in municipal court
of the City of Bismarck for keeping a dog without a license in
violation of city ordinance 3-03-01. Defendant waived a jury-trial,
and a bench trial was held on July 29, 1987, the Honorable Gail
H. Hagerty presiding.

Defendant having filed a Motion to Dismiss, which was resisted
by the City, it is hereby |

ORDERED that defendant’s Motion to Dismiss is DENIED.

It is hereby

ADJUDGED that defendant is guilty of keeping an unlicensed
dog in the City of Bismarck in violation of city ordinance 3-03-01.

It is hereby

ORDERED that defendant is sentenced to a fine in the amount
of twenty-five dollars payable to the municipal court. Defendant
is ordered to obtain a dog license as required and pay the fee
therefore, within ten days of the date of this Order. Defendant
is also ordered to pay $50.00 court costs, for witness fees, payable
to the county court.

Dated this 3rd day of August, 1987.

32.

BY T\iE COURT:

GAIL H. HAGERTY, JUDGE

Judgment of conviction was duly entered this 3rd day of August,
1987.

Clerk of Court

eye

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

CITY OF BISMARCK,
Plaintiff/ Appellee,

JULIE VETTER,

)
)
)
VS. ) CASE NO. 870223
)
)
Defendant/Appellant. )

STIPULATION AND AGREEMENT

Pursuant to Rules 10(g) and 34(f), N.D.R.App.P., the parties
agree as follows:

1. In lieu of the record on appeal as defined in subdivision
(a) of Rule 10, N.D.R.App.R., the attached “Statement of the
Case” is submitted and presented as the record on appeal.

2. This case is submitted for decision on the briefs.

Dated this 25th day of August, 1987.

HUGH P. SEAWORTH
City Attorney
Plaintiff/Appellee

P.O. Box 5503
Bismarck, ND 58502

Dated this 3lst day of August, 1987.

JULIE VETTER
Defendant/ Appellant
917 Constitution Drive
Bismarck, ND 58501

-14-

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

CITY OF BISMARCK, )
Plaintiff/Appellee, )

)

VS. CASE NO. 870223

)

)

JULIE VETTER, )
Defendant/Appellant. )

STATEMENT OF THE CASE

1. City of Bismarck ordinance 3-03-01 states as follows:

3-03-01. License Required. It is unlawful
for any person within the city to keep, main-
tain or have in custody or under control any
dog over the age of six months which is not
licensed.

2. Defendant Julie Vetter is the owner of a dog over the age
of six months, which on or about the 19th day of March, 1987,
was kept at Vetter’s home located in the City of Bismarck.

3. A license has not been issued for the dog in question for
the year 1987, and the dog was not licensed as required by city
ordinance 3-03-01 on or about March 19, 1987.

4. Following trial by the court in Burleigh County Court on
July 29, 1987 (on appeal from a judgement of conviction in
municipal court for the City of Bismarck) Vetter was found guilty
of keeping an unlicensed dog in the city in violation of city
ordinance 3-03-01. Judgment of conviction was entered on August
3, 1987.

5. Vetter subsequently filed a timely notice of appeal.

6. The sole issue raised by Vetter on appeal is stated as follows:

£4.

Is City of Bismarck Ordinance 3-03-01
inconsistent with either the Constitution of
the United States or the Constitution of
North Dakota, and therefore invalid?

Dated this 25th day of August, {?87.

HUGH P. SEAWORTH
City Attorney

Attorney for Plaintiff/ Appellee
P.O. Box 5503

Bismarck, ND 58502

Dated this 31st day of August, 1987.

JULIE VETTER
Defendant/ Appellant
917 Constitution Drive
Bismarck, ND 58501

-16-

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

Case No. 870223

CITY OF BISMARCK,
Plaintiff/Appeilee

VS.

JULIE VETTER,
Defendant/ Appellant

APPEAL FROM THE BURLEIGH
COUNTY COURT STATE OF
NORTH DAKOTA

JULIE VETTER
In propria persona
917 Constitution Drive
Bismarck, North Dakota 58501

TABLE OF CONTENTS

Page
pet Be | Ree ere 18
EE Me TUE ctascdncstdectistesanthacssensencess 19
RE GO OEE BEE sancdeicccdinccactnccasccececie 21
TABLE OF OTHER AUTHORITIES ............. 21
STATEMENT OF JURISDICTION ................ 22
STATEMENT OF THE ISSUES. ..........22000.000. 22
STATEMENT OF TER CAGE cccccccccccceccscsesees 22
FTE Stasinscinnnidannncciddcensassnnsenasensebasons 22
GIG IIIES . Sctccsnninddccncssaccncssnaieassssnscnennin 31

-18-

TABLE OF CASES

Page

Agnew v. Schneider,

253, N.W.2d 184, 187-188 (N.D. 1977) ......... 23
Butcher’s Union Co. v. Crescent City Co.,

Ubpim. © st. 4 . eee 23
Central Markets West, Inc. v. State,

180 N.W.2d 880, 882 (Neb. 1970) ................ 31
Chisholm y. Georgia,

2 U.S. (2 Dall.) 419, 457, 471-472 (1792) ....... 23
Downes v. Bidwell,

182 U.S. 244, 277, 279, 291-292,

I EE si ccc nincsnscanscennbonnenesaenensia 23,30
Forsyth v. Hammond,

Se ID os cas chssaseccansnceset 23
Gaines v. Buford,

31 Ky. (1 Dana) 481, 500 (Ky. 1833) ............ 30
Georgia v. Stanton,

73 U.S. (6 Wall.) 50, 75-77 (1867) ................ 23
Horst v. Moses,

ee Bs I EE I, UP FEED cbanccncncasceccesecsas 26
In Re Duncan,

ao Fk a we Ee |) errr 23
Legal Tender Case,

Sn MS SD OD so. cc. sc ccncecnccnnssecacse 30
Luther v. Borden,

Be Ges Ce ed BS GADD sisdcccedccccccsrcces 23
Marbury v. Madison,

§ U.S. (1 Cranch) 137, 176-179 (1803) .......... 30

-19-

ns

Minor v. Happersett,

88 U.S. (21 Wall.) 162, 166, 175-176 (1874) ...

N.P. Railway Co. v. Warner,

43 M.W 2G 196, DOS C.D. 1990) 2.0000. .sccseeee

People v. Wilson,

261 NW:E.20 740, 744 (10. A. 1972) ...0.00cc00000

Societe Vinicole De Champagne v.
Mumm C. & Imp. Co.,
13 F. Supp. 575, 579 (1939);

BGS FB By Be CUED ca pecescssccsnecncdsnsscsncs

State v. Cromwell,

FEF ae Fay SOO Cele: TIES) cc ciciiessccnsccsvecs’

State v. Giessel,

31 NN. W.28 626, 6351 (Wisc. 1964) ...........004.

State v. Gronna,

FF Te eee SHS, Fe COED, PROS) cesiccicccscesess

State v. Klein,

gee Pe. . Bim, NSS 8E! LIL. FRI D) vicicscssses.

State v. Taylor,

133 N.W. 1046, 1048 (N.D. 1911) ...............

State v. West Virginia Racing Commission,

DS Dace My ETO CO Us NUD cescccscccsccevens

-20-

31

30

3]

31

31

31

23

31

TABLE OF STATUTES

Bismarck City Ordinance .............ccccccccecesecees

TABLE OF OTHER AUTHORITIES

United States Constitution
Article I, Section 10, Clause 1 ..........cccsssseee

North Dakota Constitution
Pitti SSRI Fe cisencctsccisasecnsceisdsscccendeuns

United States Constitution
a oa od coke Seueeweeee

North Dakota Constitution
(ESS AT AAA RR RR Ee BE BET OT Tr

Bouvier’s Law Dictionary
1873 Edition and the 1914 Edition
GeTimins “HOD”. ...cciccccesccccerccccccccccssooeeees

Black’s Law Dictionary
1891 Edition and the Fifth Edition
defining “nobility” .............cscccrsccccsseseeseesers

The Federalist Papers
By Hamilton, Madison, and Jay
Numbers 39, 44, 57 by Madison ................5.
Numbers 84 and 85 by Hamilton .................

at.

Page
30

Page

30

23

26

26

25,26
27

STATEMENT OF JURISDICTION

The appeal to this Court is taken pursuant to Rule 1,
N.D.R.App.P.

STATEMENT OF THE ISSUES

Is City of Bismarck Ordinance 3-03-01 a grant of a title of
nobility and thus unconstitutional?

STATEMENT OF THE CASE

Appellant, Julie Vetter, was issued a criminal complaint for
violation of City Ordinance 3-03-01, which prohibits a person
from keeping a dog in the city over six months of age that is not
licensed by the city. Appellant plead not guilty to the offense on
April 2, 1987, and a trial was set for May 7, 1987. Prior to the
trial the Appellant made a motion to dismiss the complaint.

On May 7, 1987 the trial was held and it was then that the
Appellant was informed that her motion to dismiss was denied.
Appellant received notice through the mail after the trial that her
motion to dismiss was denied. Municipal Court ordered a $25.00
fine and licensure of dog.

Vetter made an appeal to the Burleigh County Court on May
11, 1987. The trial was held on July 29, 1987, where Appellant’s
motion to dismiss was denied and the municipal Court’s order
was upheld. Appellant was not asked to be present at the time
of the Order and Judgement, and a copy of this judgement was
not received by the Appellant until September 3, 1987 through
the mail. See a copy of the Appellant’s Brief in Support of
Motion to Dismiss, letter/Order Denying Motion to Dismiss and
Judgement of Conviction in the Appendix.

ARGUMENT

Julie Vetter has a naturally existing right to keep and owna

ae.

dog and such right is enumerated in the Preamble to the United
States Constitution and as such right is enumerated in the
Preamble to the North Dakota Constitution.

The Preamble identifies the fact that the People created the
government, and that thus the People are sovereign. The govern-
ment can do only those things which are specifically stated that
it can do or which it is not prohibited from doing. The
Preamble also identifies the fact that the People retained the right
to do all things except those things which the People specifically
gave up and granted to the government as is stated in the
constitution. The government was created by the People to secure
the People’s rights, not to grant any ‘rights’. North Dakota
Constitution, Article I, Section 2; Agner v. Schneider, 253
N.W.2d 184, 187-188 (N.D. 1977); State v. Taylor, 133 N.W.
1046, 1048 (N.D. 1911); Butcher’s Union Co. v. Crescent City Co.,
111 U.S. 746, 756-757 (1884).

“All political power is inherent in the people.
Government is instituted for the protection,
security and benefit of the people, and they have
a right to alter or reform the same whenever the
public good may require.”

N.D. Constitution, Article I, Section 2.

The State Constitution is simply a recognition of a Republican
Form of government. A government is republican if Form of it
recognizes that the citizen is sovereign, if it recognizes that all
power is in the People, that all law emanates from the People
and that all rights inhere in the People. Chisholm v. Georgia,
2 U.S. (2 Dall.) 419, 457, 471-472 (1792); Downes v. Bidwell,
182 U.S. 244, 279 (1901); In Re Duncan, 139 U.S. 449, 461-462
(1891); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 166, 175-176
(1874); Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849);
Forsyth v. Hammond, 166 U.S. 506, 519 (1897); Georgia v.
Stanton, 73 U.S. (6 Wall.) 50, 75-77 (1867). Also, our Founding
Fathers stated:

“What, then, are the distinctive characters of the
republican form? Were an answer to this question

2.

to be sought, not by recurring to principles but
in the application of the term by political writers
to the constitutions of different States, no satisfac-
tory one would ever be found. Holland, in which
no particle of the supreme authority is derived
from the people, has passed almost universally
under the denomination of a republic. The same
title has been bestowed on Venice, where absolute
power over the great body of the people is exer-
cised in the most absolute manner by a small body
of hereditary nobles. Poland, which is a mixture
of aristocracy and of monarchy in their worst
forms, has been dignified, with the same appella-
tion. The government of England, which has one
republican branch only, combined with an
hereditary aristocracy and monarchy, has with
equal impropriety been frequently placed on the
list of republics. These examples, which are nearly
as dissimilar to each other as to a genuine republic,
show the extreme inaccuracy with which the term
has been used in political disquisitions.

“If we resort for a criterion to the different prin-
ciples on whi¢h different forms of government are
established, we may define a republic to be, or
at least may bestow that name on, a government
which derives all its powers directly or indirectly
from the great body of the people, and is admin-
istered by persons holding their offices during
pleasure for a limited period, or during good
behavior. It is essential to such a government that
it be derived from the great body of the society,
not from an inconsiderable proportion or a
favored class of it; otherwise a handful of tyran-
nical nobles, exercising their oppressions by a
delegation of their powers, might aspire to the
rank of republicans and claim for their govern-
ment the honorable title of republic .. .

~ 2%.

“Could any further proof be required of the
republican complexion of this system, the most
decisive one might be found in its absolute pro-
hibition of titles of nobility, both under the federal
and the State governments; and in its express
qauranty of the republican form to each of the
latter.”

‘The Federalist Papers’’, by Hamilton, Madison,
and Jay, Number 39 by Madison.

“Are they not the genuine and characteristic
means by which republican government provides
for the liberty and happiness of the people?”
“‘The Federalist Papers’’, by Hamilton, Madison,
and Jay, Number 57 by Madison.

The government grants a title of nobility when it takes away
a naturally existing right and grants it back as a privilege. A one
word definition for a grant of a title of nobility is a grant of a
“privilege,” or “monopoly.”

“But has the State authority, under the State
constitution, to sell to a collection of persons,
whether a partnership or a corporation, an
exclusive privilege to carry on a lottery? The
people generally are prohibited from doing so
without the legislative sanction. No public law
gives this sanction. Article I, section 32, of the
State constitution declares that “no title of nobility,
or hereditary distinction, privilege, honor, or
emolument, shall ever be granted or conferred in
this State.” To confer a title of nobility, is to
nominate to an order of persons to whom
privileges are granted at the expense of the rest
of the people. It is not necessarily hereditary, and
the objection to it arises more from the privileges
supposed to be attached, than to the otherwise
empty title or order. These components are for-
bidden separately in the terms “privilege”,

-25-

“honor”, and “emolument”, as they are collectively
in the term “title of nobility”. The prohibition is
not affected by any consideration paid or rendered
for the grant.”

Horst v. Moses, 48 Ala. 129, 142 (Ala. 1872).

“An order of men, in several countries, to
whom special privileges are granted.”
Bouvier’s Law Dictionary, the 1873 and the 1914
Editions, on defining ‘‘nobility’’.

“A division of the people, comprehending
dukes, marquises, earls, viscounts, and barons.
These had anciently duties annexed to their respec-
tive honors. They are created either by writ, i.e.,
by royal summons to attend the house of peers,
or by letters patent, i.e., by royal grant of any
dignity and degree of peerage: and they enjoy
many privileges, exclusive of their senatorial
capacity.”

Black’s Law Dictionary, the 1891 Edition and the
Sth Edition copyrighted 1979, on defining
‘‘nobility’’. .

Our Founding Fathers, in speaking and advocating for the
Constitution, said:

“A fifth class of provisions in favor of the
federal authority consists of the following restric-
tions on the authority of the several States. 1. ‘No
State shall enter into any treaty, alliance, or con-
federation; grant letters of marque and reprisal:
coin money: emit bills of credit: make anything
but gold and silver a legal tender in payment of
debts; pass any bill of attainder, ex post facto law,
of law impairing the obligation of contracts; or
grant any title of nobility.’ ...

“Bills of attainder, ex post facto laws, and laws
impairing the obligation of contracts, are contrary
to the first principle of the social compact and

-26-

to every principle of sound legislation . . . Our
own experience has taught us, nevertheless, that
additional fences against these dangers ought not
to be omitted. Very properly, therefore, have the
convention added this constitutional bulwark in
favor of personal security and private rights; . .
. The sober people of America are weary of the
fluctuating policy which has directed the public
councils. They have seen with regret and indigna-
tion that sudden changes and legislative inter-
ferences, in cases affecting personal rights,
become jobs in the hands of enterprising and
influential speculators, and snares to the more
industrious and less informed part of the com-
munity .. . The prohibition with respect to titles
of nobility is copied from the Articles of Con-
federation and needs no comment.”

“‘The Federalist Papers’’, by Hamilton, Madison,
and Jay, Number 44, written by Madison.

Our Founding Fathers, in speaking to the fact that the Con-
stitution contained no bill of rights to protect the people’s private
rights and liberties, said:

“The most considerable of these remaining
objections is that the plan of the convention (the
constitution) contains no bills of rights. . . I
answer that the Constitution proposed by the con-
vention contains . . . a number of such provisions
... we find the following: . . . Clause 3 —‘No bill
of attainder or ex post facto law shall be passed.’
Clause 7—‘No title of nobility shall be granted
by the United States.’ . . . The establishment of
the writ of habeas corpus, the prohibition of ex
post facto laws, and of TITLES OF
NOBILITY —(capitalized in original book), .. .
are perhaps greater securities to liberty and
republicanism than any it—(comparing to the

ey 2

State of New York Constitution) contains.

“Nothing need be said to illustrate the impor-
tance of the prohibition of titles of nobility. This
may truly be denominated the cornerstone of
republican government; for so long as they are
excluded there can never be serious danger that
the government will be any other than that of the
people.

“It has been several times truly remarked that
bills of rights are, in their origin, stipulations
between kings and their subjects, abridgments of
prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was the
MAGNA CHARTA, obtained by the barons,
sword in hand, from King John. Such were the
subsequent confirmations of that charter by
subsequent princes. Such was the Petition of Right
assented to by Charles the First in the beginning
of his reign. Such, alse, was the Declaration of
Right presented by the Lords and Commons to
the prince of Orange in 1688, and afterwards
thrown into the form of an act of Parliament
called the Bill of Rights. It is evident, therefore,
that, according to their primitive signification,
they have no application to constitutions, pro-
fessedly founded upon the power of the people
and executed by their immediate representatives
and servants. Here, in strictness, the People sur-
render nothing; and as they retain everything they
have no need of particular reservations, ‘We, THE
PEOPLE of the United States, secure the bless-
ings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the
United States of America.’ Here is a better
recognition of popular rights than volumes of
those aphorisms which make the principle figure
in several of our State bill of rights.

-28-

“I go further and affirm that bills of rights, in

the sense and to the extent in which they are con-
tended for, are not only unnecessary in the pro-
posed Constitution but would even be dangerous.
They would contain various exceptions to powers
which are not granted; and, on this very account,
would afford a colorable pretext to cla!m more
than were granted. For why declare that things
shall not be done which there is no power to do?
Why, for instance, should it be said that liberty
of the press shall not be restrained, when no power
is given by which restrictions may be imposed?
I will not contend that such a provision would
confer a regulating power; but it is evident that
it would furnish, to men disposed to usurp, a
plausible pretense for claiming that power. They
might urge with a semblance of reason that the
Constitution ought not to be charged with the ab-
surdity of providing against the abuse of an
authority which was not given, and that the pro-
vision against restraining the liberty of the press
afforded a clear implication — (police power) that
a power to prescribe proper regulations concern-
ing it was intended to be vested in the national
government. This may serve as a specimen of the
numerous handles which would be given to the
doctrine of constructive powers — (police powers),
by the indulgence of an injudicious zeal for bills
of rights.”
“‘The Federalist Papers’’, by Hamilton, Madison,
and Jay, Number 84, written by Hamilton. (Com-
ments in parenthesis and underlining this
Writer’s.)

“The additionai securities to republican govern-
ment, to liberty, and to property, to be derived
from the adoption of the plan under consideration
—(the Constitution), consist chiefly in the

-29-

restraints . . . in the absolute and universal
exclusion of titles of “nobility”.

‘The Federalist Papers’’, by Hamilton, Madison,
and Jay, Number 85, written by Hamilton.

See also: Societe Vinicole De Champagne v. Mumm C. &
Imp. Co., 13 F.Supp. 575, 579 (1935), upheld and reiterated
in 143 F.2d 240, 241 (1944).

Bismarck City Ordinance 3-03-01 states: License Required. It
is unlawful for any person within the city to keep, maintain or
have in custody or under control any dog or cat over the age of
six months which is not licensed and inoculated against rabies.
This Ordinance takes away the right to own a dog and grants
that right back as a privilege subject to one having the dog
licensed.

Bismarck City Ordinance 3-03-01 grants a title of nobility as
it takes away the right to keep, maintain or have in custody or
control a dog and grants that right back as a privilege.

The State of North Dakota is forbidden to grant any title of
nobility. United States Constitution, Article I, Section !0, Clause
i; Downes v. Bidwell, 182 U.S. 244, 277 (1901); Gains v.
Buford, 31 Ky. (1 Dana) 481, 500 (Ky. 1833); Legal Tender
Case, 110 U.S. 421, 447 (1884). The United States Constitution,
Article I, Section 10, Clause 1, says:

“No State shall enter into any Treaty, Alliance,
or Confederation; grant Letters of Marque or
Reprisal; coin Money; emit Bills of Credit; make

‘ any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder ex
post facto Law, or Law impairing the Obligation
of Contracts, or grant any Title of Nobility.”

And what the State can not do directly and can not authorize,
it can not do indirectly or authorize through any of its agents
such as the City of Bismarck. Downes v. Bidwell, 182 U.S. 244,
291-292, 359-360, 383 (1901): Marbury v. Madison, 5 U.-S.
(1 Cranch) i37, 176-177, (1803).

And an act which the constitution clearly prohibits is beyond

-30-

the power of the City, however proper it may be as a police regula-
tion, but for the prohibitory mandate of the Constitution.
State v. Giessel, 31 N.W.2d 626, 631 (Wisc. 1948); State V.
Cromwell, 9 N.W.2d 914, 918 (N.D. 1943); State v. Klein, 249
N.W. 118, 125-127 (N.D. 1933); People v. Wilson, 281 N.E.2d
740, 744 (Ill. A. 1972); Central Markets West Inc. v. State,
180 N.W.2d 880, 882 (Neb. 1970); State v. West Virginia
Racing Commission, 55 S.E.2d 263, 270 (W.V. 1949); N.P.
Railway Co. v. Warner, 45 N.W.2d 196, 203 (N.D. 1950);
State v. Gronna, 59 N.W.2d 514, 532 (N.D. 1953).

CONCLUSION

Wherefore, Vetter prays that this appellate Court rule that
Bismarck City Ordinance 3-03-01 is unconstitutional as being and
depending upon a grant of a title of nobility; and therefore over-
turn the Judgement of Conviction in the trial court; and remand
to the trial court with proper instructions, together with the
opinion of this Court.

Dated this lIth day of September, 1987.

JULIE VETTER
917 Constitution Drive
Bismarck, ND 58501

aa:

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

Case No. 870223

* CITY OF BISMARCK,
Plaintiff/Appellee

VS.

JULIE VETTER,
Defendant/ Appellant

APPEAL FROM JUDGMENT
OF CONVICTION ENTERED
AUGUST 3, 1987
BURLEIGH COUNTY COURT

BRIEF OF PLAINTIFF/APPELLEE
CITY OF BISMARCK

Hugh P. Seaworth
City Attorney
P.O. Box 5503
Bismarck, ND 58502
Attorney for Plaintiff/Appellee

.

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ......cccccccccccccccsee.
STATEMENT OF THE ISSUE ...................00.
STATEMENT OF THE CASE ..............020-0000

A. Nature oi Case and Proceedings Below ..

B. Sentement Of Facts ......ccccccccccccscccscsccces
PTIIIAT svisocccsccctenscccccccenssssecssesssssancasss
CONC IIG ccnnncccccecccesesncccccassnsaccvcssssacsse
PIII | ccccncincssccccvssscscccccccscccccsesvsscenss

CERTIFICATE OF SERVICE .............2.000000:

£4.

TABLE OF AUTHORITIES

Cases

City of Dickinson v. Thress
69 N.D. 748, 290 N.W. 653 (1940) ...............

Megarry Bros. v. City of St. Thomas
OO PCW 2 FE CIGD), TOGA) iin cccsccncscccocccesss

Murphy v. City of Bismarck
ee TR. We OD TREE, OOD noes cccnsccccsccdadcce

Statutes and Ordinances
N.D. Cent. Code §40-05-02(22) ..............cccc0c0.
City of Bismarck Ordinance 3-03-01 (Rev. 1986)

Other Authorities

7 MCQUILLEN, Municipal Corporations,
924.284 (3@ Ed. Rev. 1981) ..................c00scs.

-34-

37
39

38

—

I.
STATEMENT OF THE ISSUE

Is City of Bismarck Ordinance 3-03-01 inconsistent with either
the Constitution of the United States or the Constitution of North
Dakota, and therefore invalid?

II.
STATEMENT OF THE CASE

A. Nature of Case and Proceedings Below.

Defendant/Appellant Julie Vetter was charged in Bismarck
Municipal Court for failing to obtain a dog license as required
by City of Bismarck ordinance 3-03-01. A complaint was signed
and filed on March 23, 1987, alleging the offense was commit-
ted on March 19, 1987. Prior to trial, the municipal judge denied
Vetter’s motion to dismiss. Vetter appealed to Burleigh County
Court pursuant to N.D. Cent. Code §40-18-19.

Vetter thereafter filed a motion to dismiss in county court. She
also filed a document entitled Request Not to be Present At Trial
(pursuant to Rule 43, N.D.R.Crim.P.) and she was not present
at trial, held on July 29, 1987. Prior to trial, Vetter’s motion to
dismiss was denied. Vetter was found guilty following trial by
the court and a judgment of-conviction was entered on August
3, 1987. Vetter subsequently filed a timely notice of appeal.

B. Statement of Facts.

The stipulated facts are set forth in the Statement of the Case.
Vetter is the owner of a dog, over the age of six months, which
on or about the 19th day of March, 1987, was kept at Vetter’s
home located in the City of Bismarck. A license has not been
issued (by the City of Bismarck) for the dog for the year 1987.
The dog was not licensed as required by City of Bismarck
ordinance 3-03-01 on or about the 19th day of March, 1987.

.35.

III.
ARGUMENT

Vetter has violated City of Bismarck ordinance 3-03-01. She
kept a dog, over the age of six months, within the city, but did
not obtain a license for the dog as required by ordinance 3-03-01.
The only question before the court is this: Is ordinance 3-03-01
a constitutional exercise of power conferred on municipalities by
the State of North Dakota?

Vetter argues that she has a “naturally existing” right to keep
and own a dog. She claims the City of Bismarck grants a “title
of nobility” when it takes away a “naturally existing” right and
gives it back as a privilege. Vetter argues that the City of Bismarck
(and the State) may not, under the federal and state constitu-
tions, grant a title of nobility. She believes that the City has done
just that, by taking away her “naturally existing” right to keep
and own a dog, and giving it back as a privilege by permitting
one to keep and own a dog only if a license is obtained and the
required fee is paid.

To say that Vetter’s reasoning is flawed is to understate the
case. If one adopts this line of reasoning, then a municipality
(or the state) may not require licenses or permits of operators
of motor vehicles, hunters or fishermen, contractors, plumbers,
lawyers, doctors, or any other professionals or tradesmen.
Furthermore, under this line of reasoning, a municipality (or the
state) may not license motor vehicles, issue building permits, or
require a whole host of other licenses and permits that @e basic
to the exercise of a variety of traditional governmental regulatory
practices.

Vetter’s argument is not only illogical, it also lacks founda-
tion in law. Vetter has not cited a single case in any jurisdiction
that supports her argument that a municipality may not, when
authorized to do so by the state, license and regulate the owner-
ship and keeping of dogs. In fact, any question concerning the
constitutionality of ordinances providing for the licensing of dogs
has long since been resulved, in this state and elsewhere.

Municipalities, as agencies of the state, have only those powers

-36-

3
é
|
v
4
j
:

expressly conferred upon them by the Legislature or such as may
be necessarily implied from the powers expressly granted.
Murphy v. City of Bismarck, 69 N.D. 748, 109 N.W.2d 635
(1961); Megarry Bros. v. City of St. Thomas, 66 N.W.2d 704
(N.D. 1954). The power to license and regulate dogs is expressly
granted to municipalities by N.D. Cent. Code §40-05-02(22):

22. Dogs. To license dogs, and to regulate the
keeping of dogs including authorization for their
disposition or destruction in order to protect the
health, safety, and general welfare of the public.

The City of Bismarck has enacted an ordinance implementing
this power as follows:

3-03-01. License Required. It is unlawful for any
person within the city to keep, maintain or have
in custody or under control any dog over the age
of six months which is not licensed and inoculated
against rabies.'

There is no doubt that ordinance 3-03-01 is within the authority
conferred by N.D. Cent. Code §40-05-02(22). The constitution-
ality of similar ordinances or statutes that provide for licensing
and regulation of dogs has consistently and universally been
upheld.

This court has previously addressed the question of whether
municipalities in the State of North Dakota have the authority
to license and regulate dogs. City of Dickinson v. Thress, 69 N.D.
748, 290 N.W. 653 (N.D. 1940). In City of Dickinson v. Thress,
the court stated that the Legislature, under the police power, may
regulate the keeping of dogs and delegate that authority to cities.
City of Dickinson v. Thress, at 655 (citing Sentell v. New Orleans
& C.R. Co., 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169 (1897).
The court also said that:

1. The City, after the date of this offense, amended ordinance 3-03-01. The
words “or cat” were inserted following the word dog. As a result of the amend-
ment, effective June 23, 1987, all cats over the age of six months in the City
must be licensed and inoculated against rabies.

37.

Reasonable statutes and ordinances providing for
license fees on dogs are constitutional as a valid
exercise of the police power of the state or city.

City of Dickinson v. Thress, at 656, (citing 2 Am. Jur. pp. 719,
720). The court held that the Legislature had granted to
municipalities the power to provide for the registration and
licensing of all dogs kept or harbored within the city. City of
Dickinson v. Thress, at 659.

As the court acknowledged in City of Dickinson v. Thress,
dog licensing statutes are a constitutional exercise of the city’s
power. Without a doubt, municipalities may, under “police power
or a general welfare clause and in some instances under specific
power... enact... ordinances regulating and requiring dogs
to be registered and licensed”. 7 MCQUILLEN, Municipal
Corporations, §24.284 (3d Ed. Rev. 1981).

IV.
CONCLUSION

The City of Bismarck has express power to license dogs. An
ordinance implementing this power is clearly constitutional.
Dated this 9th day of October, 1987.

Respectfully submitted,
CITY OF BISMARCK

HUGH P. SEAWORTH
City Attorney

221 North Fifth Street
Bismarck, ND 58502

-38-

+: tccceucaailill

ADDENDUM
City of Bismarck Ordinance 3-03-01 (Rev. 1986)

CHAPTER 3-03
LICENSING AND CONTROL OF DOGS AND CATS

3-03-01. License Required. It is unlawful for any person within
the city to keep, maintain or have in custody or under control
any dog over the age of six months which is not licensed and
inoculated against rabies.

3-03-02. License Application, Fee and Renewal.

1. Any person desiring to keep, maintain or have in custody
or control any dog over the age of six months shall make
application to the city auditor for a license to keep the dog. The
application must be in writing stating the name, sex, color and
other distinguishing characteristics of the dog and the name and
address of the applicant. The license must be renewed annually
for so long as the dog is kept within the city by payment of the
annual fee established in this section.

2. Before any license may be issued the applicant shall fur-
nish a certificate of vaccination issued by a veterinarian licensed
to practice within this state evidencing that the dog for which
the license is desired has been vaccinated against rabies and that
such vaccination will be good for the license year.

CERTIFICATE OF SERVICE

I certify that a copy of he foregoing document was on the
9th day of October, 1987, mailed to the following person:

Julie Vetter
917 Constitution
Bismarck, ND 58501

HUGH P. SEAWORTH

-39-

November 19, 1987

Ms. Julie Vetter
917 Constitution Drive
Bismarck, ND 58501

RE: City of Bismarck v. Vetter
Supreme Court No. 870223

Dear Ms. Vetter:

The Supreme Court has today entered judgment in this case
wherein the judgment of the county court is affirmed under Rule
~ 35.1(1) and (7), N.D.R.App.P.
Under the N.D.R.App.P., a petition for rehearing may be
filed within fourteen days from this date, during which period
the mandate of the Court will be stayed. Petitions for rehearing
should conform to the provisions of Rule 40, N.D.R.App.P.
A copy of the decision of the Court is enclosed.

Sincerely yours,
Luella Dunn
Clerk

North Dakota Supreme Court

LD:mh:tb
Enclosure

cc and encl: Mr. Hugh Seaworth, City Attorney
the Honorable Gail Hagerty

-40-

' IN THE SUPREME COURT
. STATE OF NORTH DAKOTA

Appeal from the County Court of Burleigh County.

CITY OF BISMARCK, )
Plaintiff/Appellee, )
) JUDGMENT
VS. ) File No. 870223
)
JULIE VETTER, )

Defendant/Appellant. )

This appeal having been submitted to the Court at the November,
1987, term before:

The Honorable Ralph J. Erickstad, Chief Justice; the Honorable
Gerald W. VandeWalle, the Honorable H.F. Gierke III, the
Honorable Herbert L. Meschke, the Honorable Beryl! J. Levine,
Justices;

and the Court having considered the appeal, it is ORDERED
AND ADJUDGED that the judgment of the court below be and
the same is hereby AFFIRMED UNDER RULE 35.1(1) and (7),
NDRAppP.

Dated: November 19, 1987.

By the Court:

RALPH J. ERICKSTAD

Chief Justice

North Dakota Supreme Court
Attest: Clerk of the Supreme Court

Seal

as

City of.Bismarck v. Vetter
Cr. No. 870223

LEVINE, Justice.

Julie Vetter appeals from a county court judgment of convic-
tion of failure to obtain a dog license in violation of City of
Bismarck ordinance 3-03-01. The issue is whether 3-03-01 is an
unconstitutional “grant of title of nobility” which transforms
Vetter’s “naturally existing” right to own a dog into a mere
privilege. Neither ordinance 3-03-01 nor the state statute, NDCC
§ 40-05-02(22), which authorizes municipalities to enact such
statutes, is a grant of nobility.

The judgement is affirmed under North Dakota Rule of
Appellate Procedure 35.1(1) and (7), City of Dickinson v. Thress,
290 N.W. 653 (N.D. 1940).

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

Case No. 870223

CITY OF BISMARCK,
' Plaintiff/ Appellee

VS.

JULIE VETTER,
Defendant/ Appellant

Petition For Rehearing
from the County Court,
County of Burleigh County,
State of North Dakota

APPELLANT'S BRIEF

Julie Vetter, in propria persona
917 Constitution Drive
Bismarck, North Dakota 58501

-43-

TABLE OF CONTENTS

Page
PT I COI Giddsciddarenvsvasspscuiastotacetein 45
TABLE OF STATUTES AND AUTHORITIES 47
SIATEMENT OF THE ISSUES. .........0c000c0000 48
SIA remeer) OF THE CASE ui. ccccscscccseseses: 48
NT Li cduonbstnsdeslesdnscrhinéaasebancsuctiaduocs 48
SPRINT sarevdsdasssscocecncasecdvseddcansenensses 52

TABLE OF CASES

Page

Benboe v. Carroll,

494 F.Supp. 462, 465-466 (1977) .................. 49
Calder v. Bull,

3 U.S. (3 Dall.) 386, 388-389 (1798) ............. 49
Cracchiola v. C.I.R.,

ee ee Rs BD CRUIEED cccneccdcccccsccccscpeces 49
Crain v. City of Mountain Home, Ark.,

URS & See Oo FY earner 49
Cummings v. The State of Missouri,

71 U.S. (4 Wall) 277, 286-289, 320-325 (1866) 48
Davis v. Berry,

BE i ne MOE MEER cnn ccacdocenssacecoscaseacncsse 49
Fletcher v. Peck,

10 U.S. (6 Cranch) 87, 138 (1810) ................ 48
Gains v. Buford,

31 Ky, (1 Dana) 481, 508-511 (Ky. 1833) ....... 48
Giordenello v. United States,

sis a BF | rrr 52
Green v. Shumway,

39 N.Y. 418, 422-423 (N.Y. 1868) ................ 48
Hunt v. State,

11 N.W.2d 533, 535 (Neb. 1943) ...............5. $1
In Re Yung Sing Hee,

36 F. 437, 439-440 (1888) ..........0... ccc cece eee 49
Losier v. Sherman et al,

EO ee Bi STS CE. EDGED) cvcccvccccescecsyens 49

-45-

tia nite eaeeeaimanil

Murphy and Glover Test Oath Cases,

41 Mo. 339, 342-347 (Mo. 1867) ............

Nixon v. Administrator of General Services,

433 U.S. 425, 468-469, 473-475 (1977) ....

Norris v. Doniphan,
61 Ky. (4 Metc.) 385, 427-428 (Ky. 1863)

People v. Hayes,

3D NBs D5i, 952 CN.F. 1GBG) 2. .ccccccccsees

Starkweather v. Blair,

71 N.W.2d 869, 878 (Mn. 1955) ............

State v. Burch,

170 N.W.2d 543, 551 (Minn. 1960) ........

State v. Gotsch,

184 A.2d 56, 58 (Conn. 1962) ..............

State v. Green,

351 N.W.2d 42, 44 (Minn.App. 1984) .....

State v. McIntyre,

19 Minn. 93 (Gil. 65) (1872) .................

United States v. Brown,

328 U.S. 437, 447, 458-461 (1965) ..........

United States v. Lovett,

328 U.S. 303, 315-318 (1946) ...0 oc...

Van Hoven,

see eee

“ee eee

28 Fed Cas. 1020, 1021 (Cir. Ct., Minn. 1876)

Re GIs DERMEIED ucnichsckaveconsesssadaensinénans

-46-

48

49

48

48

48

51

50

50

51

49

49

50

TABLE OF STATUTES AND AUTHORITIES

Page

City of Bismarck ‘

Clay Cndimemce 3-05-01 ......cccccccrccccccsccccecees 50

Home Rule Charter, Article 2 ..................48. 49
F.R.Crim.P.

IN out S ot eed eeeaddasasebenasmianseuse 50
N.D.C.C.

I se on as se aabasenanesasddeacqea 49
N.D.R.Crim.P.

NRE Sk i dt eck aeaeenaneusennees 49

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NORTH DAKOTA CONSTITUTION

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UNITED STATES CONSTITUTION

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STATEMENT OF THE ISSUES

1. Was Vetter prejudiced in that the complaint failed to charge
an offense?

2. Is the ordinance a bill of pains and penalties?

STATEMENT OF THE CASE

The facts are: Vetter mailed a copy to the City of Bismarck
of her receipt from her veterinarian that her dog was inoculated.
The City mailed her note back to her. See affidavit as Exhibit
A. Subsequently, the City summoned Vetter to answer the
complaint, which made no reference to keeping an uninoculated
dog as the forbidden offense or even as an element of the
offense, nor was the complaint later amended to make inocula-
tion an element of the offense. See Exhibit B. The trial courts
subsequently ruled and adjudged that Vetter was guilty of not
having a license, but no judgement was made or entered or
considered that Vetter was guilty of keeping an uninoculated dog.
See a copy of the Municipal Court’s and County Court’s
Judgements, Exhibit C.

ARGUMENT

The government passes a “bill of attainder,” and more
specifically, a “bill of pains and penalties,” when it legislatively
declares one to be guilty of something, then punishes one for that
guilt. Starkweather v. Blair, 71 N.W-2d 869, 878, (Mn. 1955);
Gains v. Buford, 31 Ky. (1 Dana) 481, 508-511 (Ky. 1833);
Green v. Shumway, 39 N.Y. 418, 422-423 (N.Y. 1868); People
v. Hayes, 35 N.E. 951, 952 (N.Y. 1894); Cummings v. The State
of Missouri, 71 U.S. (4 Wall) 277, 286-289, 320-325 (1866);
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810); Norris v.
Doniphan, 61 Ky. (4 Metc.) 385, 427-428 (Ky. 1863); Murphy
and Glover Test Oath Cases, 41 Mo. 339, 342-347 (Mo. 1867);

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Davis v. Berry, 216 F. 413, 419 (1914); Calder v. Bull, 3 U.S.
(3 Dall.) 386, 388-389 (1798); In Re Yung Sing Hee, 36 F. 437,
439-440 (1888); United States v. Lovett, 328 U.S. 303, 315-318
(1946); United States v. Brown, 381 U.S. 437, 447, 458-461 (1965);
Nixon v. Administrator of General Services, 433 U.S. 425,
468-469, 473-475 (1977); Benboe v. Carrol, 494 F. Supp. 462,
465-466 (1977); Crain v. City of Mountain Home, Ark., F.2d
726, 728-729 (1979); Cracchiola v. C.I.R., 643 F.2d 1383, 1385
(1981); Losier v. Sherman et al, 138 P.2d 272, 273 (Kan. 1943).
One of the characteristics of a bill of pains and penalties is that
it declares one to be guilty without a judicial determination of
guilt. That is, it is malum prohibitum. There is no mens rea, as
the legislature has declared one to be guilty even without intent.
Another characteristic is that the act is preventivé to prevent a
future potential event or that a given group was likely to cause
a future event. And another characteristic is that one must
prove one’s innocence to prevent one’s self from being convicted,
that is, one must bear witness against one’s self.

Bismarck City ordinance 3-03-01 is a legislative declaration that
one is guilty of keeping an unlicensed and uninoculated dog. Then
it punishes one for one’s legislatively determined guilt.

Thus, Bismarck City ordinance 3-03-01 is a “bill of pains and
penalties” as it legislatively declares one to be guilty of maintaining
or controlling an unlicensed and uninoculated dog, then punishes
one for that guilt with a penal penalty.

The State of North Dakota and the City of Bismarck is
forbidden to pass any “bill of pains and penalties” or “bill of
attainder.” North Dakota Constitution, Article I, Section 18;
United States Constitution, Article I, Section 10, Clause 1: The
Home Rule Charter of the City of Bismarck, Article 2.

’ Now, to a more traditional approach to the issue:

“The complaint is a written statement of the essential facts
constituting the offense charged.” Rule 3, N.D.R.Crim.P. “A
complaint must state... the acts or omissions complained of
as constituting the crime or public offense named.” N.D.C.C.
29-05-01. See also the United States Constitution, Amendments
Number 4 and 14.

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mere

“.,. and no warrant shall issue but upon probable
cause, supported by oath or affirmation, ...”
North Dakota Constitution, Article I, Section 8.
See also Rule 4(a)(2) of the N.D.R.Crim.P.

Since Rule 3, N.D.R.Crim.P., is taken from F.R.Crim.P., Rule
3, the following is applicable:

“The complaint upon which the warrant of arrest
is asked, should set forth clearly, but briefly, the
substance of the offense charged, and the substan-
tial, material features thereof.” I think tested by
the above decision, the complaint does not show
probably cause for the arrest, and at common law,
is defective... clearly, under our system of criminal
jurisprudence, such a complaint would not
authorize the arrest of one of our citizens ... The
petitioner, therefore, must be discharged from
custody.”

Van Hoven, 28 Fed.Case 1020, 1021 (Cir. Ct.,
D. Minn. 1876), Case No. 16,858.

The only essential fact can be the element of inoculation. And
this element can not be ignored in the complaint or at trial nor
can it be presumed by merely showing a failure to have a license.
Something more myst be introduced as evidence. State v. Green,
351 N.W.2d 42, 44 (Minn.App. 1984); State v. Gotsch, 184 A.2d
56, 58 (Conn. 1962).

“It is unlawful for any person within the city to
keep, maintain or have in custody or under
control any dog over the age of six months which
is not licensed and inoculated against rabies.”
Bismarck City Ordinance 3-03-01.

~Not having a license per se can not be a crime, for the right
of the People collectively, a/k/a police power, can only have to
do with, in this context, health. Thus, the complaint must have
dealt with the health issue, and not with a piece of paper. A com-
plaint is fatally defective when its allegations are true and still

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not charge an offense. It is insufficient if the offense as stated
in the complaint can not enable the court, looking along to the
complaint and the verdict, to impose a sentence. Hunt v. State,
11 N.W.2d 533, 535 (Neb. 1943); State v. McIntrye, 19 Minn.
93 (Gil. 65) (1872). For the court, looking at the verdict of not
having a license, can not impose sentence as the court still has
no knoWledge and evidence if the dog was inoculated, and one
can not be convicted or sentenced upon a pure, naked
presumption.

The fatally defective complaint caused Vetter to believe that
the ordinance was disjunctive, and not conjunctive. If inocula-
tion had been stated as an element of the crime in the complaint,
Vetter would have been able to challenge the charge at the trial
level, as the dog is inoculated. See the attached affidavit of
Vetter, Exhibit A. Vetter never has objected to having her dog
inoculated, as Vetter believes that her neighbor, as well as herself,
should not unnecessarily create the potential for health hazards
to any person.

After having her note returned to her and followed by the defec-
tive complaint, Vetter could only presume that the City was
only concerned with a license, and was not concerned with health,
and that thus the City was trying to take away her right to own
a dog. Thus, Vetter was prejudiced in that she erroneously allowed
herself to be convicted, thinking this issue was strictly a constitu-
tional question. It was only after this Supreme Court informed
her that no rights were at issue in the ordinance and discovered
the issue was dealing with the rights of the People collectively
— health related, and not constitutional. Of course, if it is held
in the future that all the City is still interested in is the license
only, that is, the ordinance is disjunctive, then the constitutional
question becomes the controlling issue as discussed in the first
half of this brief.

Since the complaint prejudiced Vetter, the conviction must be
overturned as the prejudice goes to the merits of the conviction.
State v. Burch, 170 N.W.2d 543, 551 (Minn. 1960).

Nor should this case be sent back for amendment of the com-
plaint and retrial, as the City had this evidence of health within

$i.

its knowledge all during trial, else how could they have argued
the ordinance was constitutional? Nor could Vetter have assumed
from the complaint that inoculation should or could be an issue
in vindicating one’s innocence. Giordenello v. United States,
357 U.S. 480, 488 (1958).

CONCLUSION

Wherefore, Vetter prays this Court to dismiss the complaint
on the ground that the facts stated in the complaint do not
constitute an offense; or hold that the ordinance is a bill of pains
and penalties.

Dated this 2nd day of December 1987.

JULIE VETTER
917 Constitution Drive
Bismarck, N.D. 58501

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AFIDAVIT

I, Julie Vetter, sent the rabies vaccination certificate from the
veterinarian to the city of Bismarck which verified that my dog
had been inoculated against rabies. The city sent it back to me
in the mail with no explanation. At a later date the City of

Bismarck summoned me with a criminal complaint of no dog
license.

Date Signature

Notary Public

My commission expires:

C. JOANN SPARROW

Notary Public, Burleigh Co. ND

My Commission Expires May 12, 1993

Exhibit A

$3.

December 30, 1987

Ms. Julie Vetter
917 Constitution Drive
Bismarck, ND 58501

RE: City of Bismarck v. Vetter
Supreme Court No. 870223
Dear Ms. Vetter:

The Supreme Court on December 29 entered an order deny-
ing the petition for rehearing in this case.

In accordance with Rule 41(a), NDRAppP, the mandate of

_the Supreme Court will be forwarded to the Clerk of the District
Court after the expiration of seven days.

Sincerely yours,

Luella Dunn

Clerk

North Dakota Supreme Court
LD:je

cc: Mr. Hugh P. Seaworth
The Honorable Gail Hagerty

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IN THE SUPREME COURT
UNITED STATES OF AMERICA

CITY OF BISMARCK, )
Appellee, )
) NOTICE OF APPEAL
VS. ) Case No. 870223
)
JULIE VETTER, )

Appellant. )

Now comes the Appellant, in propria persona, pursuant tc 28
USC, Section 1257 (2), before the United States Supreme Court
to appeal the Burleigh County Court’s judgement (August 3,
1987), and the North Dakota State Supreme Court’s judgement
(November 19, 1987), of licensure of dog, $25.00 fine and $50.00
court costs. Petition for rehearing denied on December 29, 1987.

Dated this Sth day of January, 1988.

JULIE VETTER

917 Constitution Drive
Bismarck, N.D. 58501

7

PROOF OF SERVICE
I do hereby declare that a true and correct copy of the above
document was hand delivered t. the office of:

Bismarck City Attorney
221 North Sth Street
Bismarck, N.D. 58501

Dated this Sth day of January, 1988.

e ett

JULIE VETTER

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PROOF OF SERVICE

I do hereby declare that three copies of the foregoing
document was hand delivered to the office of:

HUGH: P. SEAWORTH
City Attorney
221-North Sth Street
Bismarck, N.D. 58501

Dated this 22nd day of March, 1988.

JULIE VETTER
In Propria Persona

917 Constitution Drive
Bismarck, North Dakota 58501

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0778%3A2. Public record. Not legal advice.