(dissenting). This is an appeal from an order overruling a motion to vacate a garnishment proceeding. The action is one brought against the state of North Dakota, in which the plaintiff seeks to recover a • judgment of approximately $125,000, for deposits of money made in the Bank of North Dakota.
The plaintiff, at the time of bringing the action, instituted garnishment proceedings against seventeen national and state banks, wherein it is claimed that the State of North Dakota, Doing Business as the Bank of North Dakota, had redeposited certain funds.
The defendant, the state of North Dakota, interposed an answer to the garnishment proceedings, wherein it charged the garnishment affidavits were false and untrue; that the garnishment summons was issued in violation of § 8177, Comp. Laws 1913, and that the same is illegal and void, and that all the property held by the garnishees, belonging to the defendant, is absolutely exempt from execution.
The defendant then moved to dismiss such garnishment proceedings, upon grounds contained in the answer, which motion was denied by the trial court.
This case is manifestly one of great importance, and should receive the earnest, serious, careful, and conscientious consideration of each member of this court. The majority opinion, if it shall eventually become final, strikes down every state-owned industry and utility heretofore brought into existence, in consonance with certain provisions of our State Constitution, and laws enacted under the authority and in pursuance thereof. It strikes down not only the Bank of North Dakota, exclusively owned and operated by the state, hut the reasoning therein as well strikes down the state-owned industries of mills and *581elevators, and the state-owned-and-operated Home Building Association ; and this, as we firmly are impressed and believe, in direct violation of certain provisions of the Constitution, and certain laws enacted in pursuance thereof, hereafter to he particularly mentioned.
The majority opinion, at its very threshold, states that “two fundamental, legal questions are involved: First, the status of the Bank of North Dakota; and, second, the right to avail of garnishment process in a proceeding against it.”
Thus, at the very inception of the decision, we find an erroneous premise, which consists in the claim that one of the fundamental, legal questions involved is the “status” of the Bank of North Dakota. There is no such question involved in this case. The r'eal questions involved in this case are: First, the status of the State of North Dakota; and, second, the right to avail of garnishment process in a proceeding against the State of North Dakota.
It is only by the erroneous premise assumed in the first question, as stated in the majority opinion, that made it possible for the writer of that opinion to proceed to deliver himself of the thoughts contained therein. By assuming the erroneous premise, he was able to write something which at first glance may appear plausible, but upon serious consideration will be found to have no merit.
Having assumed an erroneous premise, there could be but one result, and that is, to reach an erroneous conclusion.
The first question to be decided is, whether the State of North Dakota, in its sovereign capacity, is engaged in the hanking business, or whether the Bank of North Dakota, as a separate and distinct corporate entity, is thus engaged. We must determine, at the outset, whether, in the conduct of the business of the Bank of North Dakota, the state of North Dakota is functioning in its sovereign capacity, or whether it has loaned its credit, its money, its resources, to a separate entity or corporation, engaged in a private business or undertaking.
The principal contention or claim of the majority opinion is that the Bank of North Dakota is engaged in private business; that in effect it is a private corporation, and, as such, may sue and be sued. What is claimed in this regard in reference to the Bank of North Dakota, if such claim is well founded, applies with equal effect to the state-owned mill and elevator, and to the Home Building Association.
*582Section 185 of our Constitxxtion, as the same was drafted by the members of the Constitutional Convention, and as it became a part of our Constitution, reads thus:
“Neither the state nor any county, city, township, town, school district or any other political sxxbdivision shall loan or give its credit or make donations to or in aid of any individual, association or corporation, except for necessary support of the poor, nor subscribe to or become the owner- of the capital stock of any association or corporation, nor shall the state engage in any work of internal improvement unless authorized by a two-thirds vote of the people.”
For more than twenty-five years the farmers of this state, agricultural interests, and producers iixcessantly carried on an agitation for state-owned mills and elevators and other state-owned utilities and industries. Finally it came to pass that the people, in their sovereign capacity, and in the exercise of their elective franchise, determined that the state should engage in its sovereign capacity in industry, enterprise, and bxxsiness on its own account, and the people in their sovereign capacity, having so determined, . it became necessary to amend § 185, and it was amended, and is referred to in the majority opinion as article 32. It reads thus:
“Section 185 in article 12 as amended by article 18 of amendment. The state, any county or city may make internal improvements and may engage in any industry, enterprise or business not prohibited by article 20 of the Constitxxtion (provision with reference to prohibition), but neither the state nor any political subdivision thereof shall loan or give its credit or make donations to or in aid of any individual, association or corporation, except for reasonable support of the poor, nor subscribe to or become the owner of capital stock in any association or corporation.”
The effect of this amendment is to authorize the state, in its sovereign capacity, to engage in any industry, enterprise, or business not prohibited by article 20 of the Constitxxtion. But, as will be seen from a reading of § 185 as amended, it still prohibits the state, or any political subdivision thereof, from loaning or giving its credit, or from making donations in aid of any individual, association, or corporation, which, of course, means any individual, association, or corporation engaged in a private business. Neither can the state, nor any political *583subdivision, subscribe to or become the owner of any capital stock of any such association or corporation.
■ Now, one of two propositions must follow. Either .the state, in its sovereign capacity, has, in pursuance of the authority contained in § 185 as amended, engaged in industry, enterprise, or business, or it has loaned its credit, money, and made donations to an individual, or an association, or corporation, engaged in the conduct of a private business, such as the majority opinion claims the Bank of North Dakota to be.
Now, if the state of North Dakota has not engaged in business in its sovereign capacity, it has loaned its credit, or money, or made donations to the extent of $2,000,000, to the Bank of North Dakota, which, according to the majority opinion, is engaged in private business, the same as any other corporation, and liable as such to sue and be sued.
If this were true, which it certainly is not, than the loaning or giving of money, or making donations to the Bank of North Dakota, in the manner it has been done, would be a direct violation of § 185 as amended, which prohibits the state from loaning or giving its credit, making donations to individuals, associations, or corporations which are engaged in private business.
Can it be claimed that the people of the state of North Dakota, acting in their sovereign capacity, and exercising the sovereign right of elective franchise, were so foolish, or so simple, as to go to all the expense and trouble of amending § 185 of the Constitution, so as to permit the state to engage in any industry, enterprise, etc., if they were not thereafter to act under that section as amended, if they acted at all ?
Did they do all of this, and then afterwards convene in their legislative capacity, through their representatives, and pass laws and malee appropriations to private corporations, such as the Bank of North Dakota is by the majority opinion claimed to be, the only result of which was to violate § 185, which prohibits the loaning or giving of the state's credit to private corporations? Most certainly not. What the state of North Dakota has done, under § 185 as amended, permitting" it to engage in industry and business, it has done in its sovereign capacity, and has established in that capacity a banking business; operated, owned, and controlled by the state, the mill and elevator *584business, and tbe Home Building Association, owned, operated, and controlled by the state, in its sovereign capacity.
To- prove this more conclusively, and to ascertain the intent of the legislature in this regard, it is not only necessary to examine and consider the contents of chapter 147 of the Session Laws of 1919, but, as well, those chapters which establish the mill and elevator business, and the Home Building Association, and the chapter which establishes the Industrial Commission, and from all of these may we draw the intent and purpose of the state to engage in business in its sovereign capacity.
Section 1 of chapter 147 reads thus: “For the purpose of encouraging and promoting agriculture, commerce, and industry, the state of North Dakota shall engage in the business of bardcing, and for that purpose shall, and does hereby, establish a system of banking owned, controlled and operated by it, under the name of the Bank of North Dakota.”
The title of the act reads thus: “An Act Declaring the Purpose • of the State of North Dakota to engage in the Banking Business and Establish a System of Banking under the Name of the Bank of North Dakota, operated by the State, and Defining the Scope and Manner of Its Operation, and the Powers and Duties of the Persons Charged with Its Management; making an appropriation therefor; and providing penalties for the violations of certain provisions thereof.”
From the language of the title and that contained in § 1, can there be the the least doubt in any fair or reasonable mind, that the state of North Dakota, in its sovereign capacity, is engaged in the banking business ? ' It is the duty of this court to construe and interpret laws and constitutional provisions. We say that, under any fair construction, after even a glance at the above plain and clear statement of the purpose of the state of North Dakota to engage in the banking business, no other conclusion is even remotely possible than that it has been, and is, in its sovereign capacity engaged in the banking business.
The purpose of the state of North Dakota to engage, in its sovereign capacity, in the business of banking, is again reasserted in § 3 of chapter 148 of the Laws of 1919, which is an act providing for the issuing of the bonds of the state of North Dakota, in the sum of $2,000,000, which the state is to use as its capital in conducting its banking business.
*585Section 3, so far as material to the purpose of showing the intent of the state of North Dakota to engage in the banking business, reads thus: “The said issue of bonds is authorized for the purpose of making delivery thereof to the Industrial Commission of North Dakota as hereinafter provided, and as contemplated by section six (6) of the act entitled ‘An Act Declaring the Purpose of the State of North Dakota to Engage in the Banking Business and Establishing a System of Banking under the Name of the Bank of North Dakota, operated by the State, and Defining the Scope and Manner of its Operation, etc.’ ”
To determine more clearly that the state of North Dakota is engaged in all the various kinds of business above mentioned, we will briefly consider part of chapter 150 of the Session Laws of 1919. The title of that act reads thus: “An Act Declaring the Purpose of the State of North Dakota to Engage in the Enterprise of Providing Domes for Residents of this State, and to That End to Establish a Business System Operated by the State, under the name of the Dome Building Association of North Dakota, and Defining the Scope and Manner of Its Operation, and the Powers and Duties of the Persons Charged with Its Management; and Making an Appropriation Therefor.”
Section 1 of that' act reads thus: “For the purpose of promoting home building and ownership the state of North Dakota shall engage in the enterprise of providing homes for residents of the state, and to that end it shall, and does hereby, establish a business system operated by the state, under the name of the Home Building Association of North Dakota, hereinafter for convenience called the Association.”
Section 15 of the same act provides that “all business of the Association may be conducted under the name of ‘The Home Building Association of North Dakota.’ Title to property pertaining to the operation of the Association shall be obtained and conveyed in the name of the ‘State of North Dakota, Doing Business as the Home Building Association of North Dakota.’ Written instruments shall be executed in the name of the slate of North Dakota, signed by any two members of the Industrial Commission of whom the governor shall be one, or by the manager of the Association, within the scope of his authority so to do cos defined by the Industrial Commission
The same provision with reference as to the execution of written instruments, and as to who shall execute them, is contained in the act establishing the Bank of North Dakota.
*586Wé shall also consider chapter 152 of the Session Laws of 1919, to determine if the state, in its sovereign capacity, is engaged in business. This act relates to the conducting of the state-owned mills and elevators. The title of the act reads thus: “An Act Declaring the Purpose of the State of North Dakota to Engage in the Business of Manufacturing and Marketing of Farm Products and for Establishing a Warehouse, Elevator, and Elour Mill system under the Name of the North Dakota Mill and Elevator Association Operated by the Slate, and Defining the Scope and Manner of its Operation, and the Powers and Duties of the Persons Charged with Its Management; and Making an Appropriation Therefor.”
Section 1 of the act provides “that, for the purpose of encouraging and promoting agriculture, commerce, and industry, the state of North Dakota shall engage in the business of manufacturing and marketing farm products, and for that purpose shall establish a system of warehouses, elevators, flour mills, factories, plants, machinery and equipments, owned, controlled, and operated by it under the name of North Dakota Mill & Elevator Association, hereinafter for convenience called the Association.”
Can any reasonable or unprejudiced mind, for a single instant, maintain that anything else is intended by the above language than that the stale of North Dakota, in its sovereign capacity, is engaged in the mill and elevator business, and in the marketing and manufacturing of farm products, etc. ?
Section 2 of chapter 153 of the Session Laws of 1919, which is an act providing for the issuing of bonds of the state of North Dakota, for the purpose of procuring money by the state, to conduct its mill and elevator business, owned and operated by it, recites in § 2 thereof, the title of chapter 152.
So, also, chapter 154 of the Session Laws of 1919, which provides for the bonds of North Dakota, Peal Estate Series, and in § 2 recites the title to the act which is chapter 147.
We now turn to chapter 151 of the Session Laws of 1919, the act creating the Industrial Commission. It is entitled “An Act Creating the Industrial Commission of North Dakota, • Authorizing It to Conduct and Manage on Behalf of -the State Certain Utilities, Industries, Enterprises, and Business Projects, and Defining Its Powers and Duties; and Making an Appropriation Therefor.”
*587Section 1: “A commission is hereby created and established to conduct and manage, on behalf of the state of North Dakota, certain utilities, industries, enterprises, and business projects, now or hereafter established by law. It shall be known as the Industrial Commission of North Dakota, but may be designated as the Industrial Commission.”
Section 2: “The Industrial Commission shall consist of three members, namely, the governor, the attorney general, and the commissioner of agriculture and labor, of the state of North Dakota, etc.”
Section 3, so far as material here, reads: “The governor shall be the chairman of the Industrial Commission, and its attorney shall be the attorney general of the state.”
Section 4: “The Industrial Commission shall adopt and procure an official seal, and may authenticate therewith its documentary acts. All orders, rules, regulations, by-laws, and written contracts, adopted or authorized by the commission, shall, before becoming effective, be approved by the governor as chairman, and shall not be in force unless approved and signed by Him.”
Section 5: “The Industrial Commission is hereby empowered and directed to manage, operate, control, and govern all utilities, industries, enterprises, and business projects, now or hereafter established, owned, undertaken, administered, or operated by the stale of North Dakota, except those carried on in penal, charitable, or educational institutions. To that end it shall have the power, in the exercise of its sound judgment, and is hereby directed:
“(a) To determine the locations of such utilities, industries, enterprises, and business projects.
“(b) For the state and in its name and behalf, in order to accomplish the purposes of this act, to acquire by purchase, lease, or by exercise of the right of eminent domain, as provided by chapter 36 of the Code of Civil Procedure, Comp. Laws of 1913, all necessary properties and property rights, and to hold and possess or to sell the whole or any part thereof; to construct and reconstruct necessary buildings thereon; to equip, maintain, repair, and alter any and all such properties and the improvements thereon; and generally to use the same so as to promote such utilities, industries, enterprises, and business projects.
“(c) To appoint a manager, and all necessary subordinate officers *588and employees, of and for each such utility, industry, enterprise,. and business project; to constitute any such manager its general agent in the performance of its duties in the particular utility, industry, enterprise, or business project in which he shall be engaged, but subject, nevertheless, in such agency to the supervision, limitation, and control of the commission. . . .
“(h) To conduct investigations of all matters directly or indirectly connected with, or bearing upon, the success of any of the utilities, industries, enterprises, and business projects under its management, and of all matters which may directly or indirectly affect the methods, operations, processes, products, or results thereof. In aid of any such investigation, the Commission shall have the power to summon and compel the attendance of witnesses, and to examine them under oath, which any member thereof shall have the power to administer. It shall have access to, and may order the production of, all books, accounts, papers, and property, material to such investigation. Witnesses, other than those in the employ of the state, shall be entitled to the same fees as in civil cases in the district court The claim that any testimony or evidence sought to be elicited or produced on such examination may tend to criminate the person giving or producing it, or expose to public ignominy, shall not excuse him from testifying or producing evidence documentary or otherwise; but no person shall be prosecuted or subjected to any penalty or forfeiture for and on account of any matter or thing concerning which he may testify or produce such evidence; provided, that he shall not be exempted from prosecution and punishment for perjury committed in so testifying.”
In view of all these provisions, can it be successfully asserted or contended, or is there a shadow of reason for doing so, that all or either of the industries above mentioned are not conducted by the state of North Dakota in its sovereign capacity? Can any other intent or purpose be deduced from the foregoing constitutional provisions or laws ?
Every member of this court, with the exception of Justice Christianson, not longer since than January 2, 1920, concurred in the decision of Green v. Frazier, 44 N. D. 395, 176 N. W. 11, wherein it was held that the establishment of all the above state industries, the proceeds of the bonds issued or proposed to be issued to establish and carry on the above industries, were to be used for a public purpose, *589by tbe sovereign power, tbe state, for tbe promotion of the general welfare of all the people of the state.
This court there said: “It must be kept in mind, also, that the ‘Bank of North Dakota’ and ‘Mill & Elevator Association,’ and all other agencies established by the state, for the purpose of operating the state industries in question, are not private corporations or private agencies, but are, so to speak, arms of the sovereign power, the state, reaching out to execute its mandates. "When the Bank of North Dakota functions, it does so as an agency of the sovereign power of the state, in like manner as the treasurer of the state of North Dakota. The same is true of every other state industry which is the subject of this controversy.”
We further said there: “Under § 185 of the Constitution of the state of North Dakota, as amended, which was submitted to the people at an election, and by the votes of the majority of the voters voting at such election duly adopted, and which constitutional amendment has legally become a part of the organic law of this state, and is now in full force and effect, the state is duly authorized and empowered to establish and operate state-owned elevators and mills. The legislature has enacted into laws the laws in question, establishing these state-owned utilities, under and by virtue of such constitutional authority. Not only ivere such laws duly enacted by the legislature of this state, but, after being enacted, under the initiative and referendum provisions of the Constitution, they were each and all referred to the people for their approval, and at a general election each of said laws were again approved by the majority of the electors voting thereon.”
In the case of State v. Taylor, 33 N. D. 76, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1918A, 583, the following principles of law are declared in the syllabus: “Wisdom, necessity, or expedience of legislation, are matters for legislative, and not judicial, consideration. The object of all statutory interpretation and construction is to ascertain and give effect to the intention of the legislature.”
We further said in the Green v. Erazier case: “The creating and constituting of the Bank of North Dakota in the manner above set forth, the authorizing of $5,000,000 mill and elevator bonds, and the $10,000,000 bonds of North Dakota, real-estate series, are each and all acts intended to stimulate the production of and the earing for the *590marketing of wheat and other small grains in the state of North Dakota, and that is held to be a public use,v to effectuate which a tax may be levied and collected, and we so determined and decided. Each and all of said bond issues are in accord with the provisions of the Constitution in question, and laws of the state of North Dakota, and we so hold.”
In the case of Scott v. Frazier, 258 Fed. 678, Honorable Charles F. Ammidon, District Judge, recognized that all the above, industries were state owned and operated, and that, largely, the purpose of the establishment of the various enterprises was public, and for public-enterprises, owned and operated by the state of North Dakota.
The case of Green v. Frazier, supra, the opinion in which was written by the writer hereof, was appealed to the Supreme Court of the United States, and was, by that high court, affirmed, and here let us inquire, Upon what principle does their decision rest? It seems that all of the state-owned industries above mentioned, including the Bank of North Dakota, were established for a public purpose. If the United States Supreme Court had not thus held, it could not have affirmed the decision in that case; for, if the above industries were businesses, or private corporations, or in the nature of private corporations, as is in effect maintained in the majority opinion, then the state of North Dakota would have no authority or power, either under the state or. Federal Constitution, to impose taxes upon property for a private purpose. The Supreme Court of the United States, in the case of Green v. Frazier, 253 U. S. 233, 64 L. ed. 878, 40 Sup. Ct. Rep. 499, in an able opinion written by Mr. Justice Day, said: “The due process of law clause contains no specific limitation upon the right of taxation in the states, b-ut it has come to be settled that the authority of the states to tax does not include the righ to impose taxes for merely private purposes.” • Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 155, 41 L. ed. 387, 17 Sup. Ct. Rep. 56. That court further said, quoting from the Fallbrook Case: “In the 14th Amendment, the provision regarding taking of private property is omitted, and the prohibition against the state is confined to its depriving any person of life, liberty, or property, without due process of law. It is claimed, however, that the citizen is deprived without due process of law, if it be taken by or under state authority for other than a public use, either under *591the guise of taxation, or by the assumption of the right of eminent domain. In that way, the question of whether private property has been taken for any other than a public use becomes material in this court, even where the taking is under the authority of the state, instead of the Federal government.” See Fallbrook Irrig. Dist. v. Bradley, supra. “In the present instance, under the authority of the Constitution and laws prevailing in North Dalcota, the people, the legislature, and the highest court of the state, have declared the purpose for which these several acts were passed to be of a public nature, and within the taxing authority of the state. With this united action of people, legislature, and court, we are not at liberty to interfere, unless it is clear, beyond reasonable controversy, that rights secured by the Federal Constitution have been violated.”
The' Supreme Court of the United States further said that the precise Question involved in the Green v. Frazier case had never been presented to that court, stating that the nearest approach to it is found in Jones v. Portland, 245 U. S. 217, 62 L. ed. 252, L.R.A.1918C, 165, 38 Sup. Ct. Rep. 112, Ann. Cas. 1918E, 660.
The Supreme Court of the United States recognized that the purpose of our state-owned-and-operated utilities is a public one, and contrasted the' principle of a public use and public institutions with private institutions.
It further said, in the Green v. Frazier case: “This is not a case of undertaking to aid private institutions by public taxation, as was the fact in Citizens’ Sav. & L. Asso. v. Topeka, 20 Wall. 665, 22 L. ed. 455. In many instances slates and municipalities have in late years seen fit to enter upon projects to promote the public welfare which in the past have been considered entirely within the domain of private enterprise.”
It has been definitely stated by this supreme court (North Dakota) in no uncertain or doubtful terms, but with great certainty, that, under the constitutional provisions and laws passed in pursuance thereof, the utilities and industries above mentioned are state owned and operated by the state of North Dakota, in its sovereign capacity, and for a public purpose. See Green v. Frazier, 44 N. D. 395, 176 N. W. 11.
The people of the state, in the exercise of their sovereign powers, and in the exercise of their elective franchise, at the time of the adop*592tion of § 185 as amended, construed such anticipated state industries and utilities to be state owned and operated by the sovereign power of the state, and in its sovereign capacity.
A like construction by the legislature has been placed upon all the laws enacted for the purpose of establishing and carrying on all of such industries. A like construction has been placed upon all of such laws, when each of them were referended and ratified by the people in the most solemn discharge of their elective franchise, at a regular election called to vote upon those measures. It is the common understanding and the common knowledge of every lay person in this state, and in every other state, and of the press, both within and without the state, and every business interest, whether agricultural, commercial, or banking, that these industries are owned and operated by the state, in its sovereign capacity.
Large amounts of money have been, and are to be, invested in them, on the theory that they are state operated and owned, and that they were established for a public purpose and a public use, and that they are in no way private businesses or agencies.
Let us now hear from our venerable Chief Justice, The Honorable J. E. Eobinson, in reference to whether the above industries and utilities are owned, controlled, and operated by the state. He expressed himself very fluently in the case of State ex rel. Langer v. Hall, 44 N. D. 536, 173 N. W. 763. In that case, the secretary of state refused to certify to the $2,000,000 of bonds of bank series, one of the grounds for refusal being that there, at that time, existed $412,000 of bonded indebtedness of the state of North Dakota. The $2,000,000 there in question were to be the capital of the state of North Dakota, in the operation of the Bank of North Dakota.
But let us listen to our venerable colleague. He first quoted the constitutional amendment, permiting the state to issue or guarantee the payment of bonds, provided that all bonds in excess of $2,000,000 should be secured by first mortgages upon real estate, etc. He further said:
“On this amendment the vote was: Yeas, 46,000; nays, 34,000. On the amendment for public ownership the yeas were Ifl ,000, nays, SB,000. On the amendment for initiative and referendum, the yeas were 50,000 and the nays 31,000. Under those amendments the state *593is free to issue bonds and to pursue any industry. . . . finder tbe old law tbe state was prohibited from engaging in any industry or enterprise, and accordingly the power to contract debts was limited to the small sum of $200,000, but under the new amendment, the old limitations and hamperments are no more. Now the state and any county or city may engage in any industry, enterprise, and business. And as no limitations are placed on the manner of doing any business, of course the state may adopt the usual business methods, which include the borrowing of money, and the adaptation of means to ends. The amendments which permit and invite the state, which make it the duty of the state to engage in business enterprises, must be liberally construed all together, so as to impose no handicaps on the state. It must be entirely free to adopt every means and method which may be necessary to business success. The state and the several counties and cities are public corporations Avith large capital and credit. Thus far they have existed as big nurslings by pursuing the feudal system of levying taxes on the people and then squandering the public money. Now, the public corporations are invited to do business to make their own expenses, and a profit for the citizens or stockholders the same as all private corporations do. With all its capital and credit, if the state cannot learn to make its oxvn expenses and a profit for its citizens, it does not deserve to exist. At the next election, there should be submitted a constitutional amendment prohibiting all further taxation, except it becomes necessary for the payment of the bonds. It is high-time for the people to throw off the yoke of bondage and feudalism,.”
The opinion in the case of State ex rel. Langer v. Hall, supra, was written by the writer hereof. It was concurred in by Mr. Justice Birdzell and Mr. Justice Robinson, and was signed by Mr. Justice Bronson.
We think there are several other cases which have been before this court, wherein the majority of the court haA'e either dirctly or indirectly held that all the above industries are owned and operated by the state, in its sovereign capacity. But Ave cannot take the time to examine them. Neither can xve quote from every case, as that would make this opinion too extended.
One of the principal contentions in the majority opinion is that all *594the above state industries, including tbe bank, are corporations, or quasi corporations. It refers to the Industrial Commission, as corresponding to directors of the bank. It seeks to show that the Bank of North Dakota is a private corporation, claiming that it can sue and be sued, the same as any other private corporation, but this is a matter with which we take direct issue, and will directly discuss when we come to consider § 22 of chapter 141.
The majority opinion seeks to show an analogy between the state of North Dakota, Doing Business as the Bank of North Dakota and a private corporation operating for gain, and then endeavors to apply the authority cited in the opinion. In other words, the opinion lays an incorrect premise, and then applies decisions of the Supreme Court of the United States, in an effort to sustain that incorrect premise.
We will try, in a few words, to point out the incorrectness of that premise, and to entirely destroy the alleged analogy of these state-owned industries to private corporations.
The same reasoning that applies to the bank of North Dakota applies to every other state-owned industry. If the Bank of North Dakota is a private corporation, or a quasi private corporation, then it must be authorized under some act authorizing its incorporation, or it must have been created a corporation by legislative act. We most sincerely maintain that neither of those conditons inhere in the creation of the Bank of North Dakota. Furthermore, if the Bank of North Dakota is a private corporation, or a quasi private corporation, it must possess the attributes of a private corporation.
The Bank of North Dakota has no president, vice president, or directors, or officers, of any kind or character, such as are necessary and indispensable in a private corporation. The Bank of North Dakota has no corporate seal, and, as is well known to all of us, a private corporation cannot act unless it possesses a corporate seal. It cannot act unless it acts through its officers. A private corporation must have stockholders. It must have capital stock, divided into shares. It must be capable of suing and being sued. It must be capable of executing instruments under its seal. This applies to all private corporations, unless organized for charitable and religious purposes, etc.
Now, the Bank of North Dakota, or any of the other state-owned industries, possess not a single one of these requirements, attributes, or *595powers. It lias no stockholders, no officers, no president or vice president, no capital stock divided into shares, and no capital stock in the sense that that term is generally understood and as applied to private corporations, but its capital stock, the $2,000,000, belongs to the state; for it is the state of North Dakota that is engaged in the banking business. It has no corporate seal. It cannot execute any instruments. No individual can receive any direct profit from the operation of the Bank of North Dakota, but only such benefit as is common to every other citizen of the state.
The purpose of the Bank of North Daktoa is public benefit not private gain. IIow is it operated? By the Industrial Commission. Who is the Industrial Commission? The governor, the commissioner of agriculture and labor, and the attorney general, each in execution of their duties, representing the sovereignty of the state. Are they conducting, on behalf of the state, only the Bank of North Dakota? No. They are the identical officers, acting in their sovereign capacity, who operate and manage for the state every other state-owned and operated industry; state-owned mills and elevators; the Home Building Association, etc.
By the act creating the Industrial Commission, their powers and duties are defined. Do they receive any additional pay over and above what they receive as constitutional officers representing the sovereignty of the state? Not one cent.
All written instruments of the Bank of North Dakota must be executed by the Industrial Commission, or under tkoir direction, by some other person, as, for instance, tho manager, under such powers as the Industrial Commission shall confer upon him. The manager of the Bank of North Dakota is the general agent of the Industrial Commission, and is specifically made so by the act creating the Industrial Commission.
The Industrial Commission has a seal. Every instrument and. act of the Bank of North Dakota, of the state-owned Mill & Elevator Association, or the Home Building Association, which, if those acts were the acts of a private corporation, requiring a corporate seal, is sealed with the seal of the Industrial Commission. Their seal is just as authoritatively used in one of the state-owned industries as another. There is no distinction.
*596The Industrial Commission, as will be seen from § 1 of the act creating it (chapter 151 of the Session Laws of 1919), is established to conduct and manage (not on behalf of itself or on behalf of the Bank of North Dakota, nor the Mill & Elevator Association, nor the Home Building Association), but, on behalf of the state of North Dakota, certain utilities, industries, enterprises, and 'business projects, now or hereafter established by law. Can words be plainer? Can the language of that act, and all of the acts herein, be quite so distorted, misunderstood, and misconstrued as to arrive at any other conclusion than that the state owns and operates all of these industries in its sovereign capacity, and that none of such industries possess any of the qualities of a private corporation, or quasi private corporation ? We say there can be but one answer, and that is, that the state owns and operates all these industries in its sovereign capacity, and every act done in connection with the operation of those industries is the act of the state of North Dakota, in its sovereign capacity. Hence, we see that the authority cited in the majority opinion has no application whatever.
We will discuss briefly two of the cases from the United States Supreme Court, cited in the majority opinion. All others there cited are the same in principle.
The case of Bank of United States v. Planters’ Bank, 9 Wheat. 904, 6 L. ed. 244, cited as directly in point in this ease, will, upon examination, be found to have no application whatever. In that case certain citizens of the state of Georgia and the state of Georgia organized a private corporation in just the same manner as if a number of citizens of the state of North Dakota, and the state of North Dakota, had organized one of the banks of Bismarck. The citizens of Georgia and the state, were individual incorporators, in the Planters’ Bank of Georgia. That bank was a corporation having all the officers that belong' to any banking corporation. • It had a president, a vice president, stockholders, and directors. If any profit were made in its operation, that profit went to the private incorporators, including the state. It had a corporate seal, as other private banking corporations has. It could sue or be sued, the same as any other private banking corporation.
Suits brought against the Planters’ Bank of Georgia were, in that *597case, held not suits brought against the state of Georgia. In short, that bank was just a plain banking corporation, organized for private gain and benefit to its incorporators.
Of course, in such case the mere fact that the state of Georgia was a private incorporator, just the same, and upon the same plane, as any other private incorporator, in that institution, would necessarily dispose of the contention that it could not be sued without its consent, by reason of its sovereignty. It became part of a private corporation. It, so to speak, became a part of that corporation as an individual and not as a state, and while it remained an incorporator thereof, its sovereignty did not attend it, because of the fact that the Planters’ Bank of Georgia was a private corporation and incorporated as such.
None of those facts apply to the case at bar; but to proceed to demonstrate this more clearly would but lead to repetition. We think the point is clear. What has been said, with reference to the case of Bank of United States v. Planters’ Bank, equally applies to the case of Briscoe v. Kentucky, 11 Pet. 257, 9 L. ed. 709. In the latter case, we have another private corporation, under the direction of a president and twelve directors chosen by the general legislative assembly. The bank was designated as a corporation, and was capable of suing and being sued. It is immaterial in such cases, that the capital of the bank was the property of the commonwealth. The principal point is, that the bank itself was a corporation, doing business on the same principles as any other private banking corporation. Whether the state of Kentucky owned one share of the stock, or all of the stock, is immaterial. It was a private banking corporation and incorporated as such; whether, under the regular incorporation act of the state of Kentucky, or by act of'the legislature, is immaterial; and the United States Supreme Court held that the bank was a simple corporation, acting within the sphere of its corporate powers, and it needs no stretch of imagination to realize that when the state of Kentucky became an incorporator, or a part of that private corporation, it ceased to act in its sovereign capacity, and as that corporation had the right to sue and be sued, of course, the state of Kentucky could not claim any privilege, on account of its sovereignty, because it was a part of the private corporation.
That is not true of the case at bar. The state of North Dakota, *598engaging in the banking business, has not become interested in any private corporation. It has created no private corporation. The Bank of North Dakota possesses no corporate powers of any kind or character, nor a single' earmark incident to private banking corporations, as is above shown.
In this ease, the state of North Dakota is engaged in the banking business in its sovereign capacity, under and by virtue of § 185 of the Constitution, as amended, and the laws enacted in pursuance thereof, creating the state industries, including the Bank of North Dakota.
The remainder of the authority cited in the majority opinion is exactly of the same nature as that above analyzed. It has no application whatever. It is not in point. It does not apply to this case. In most of the barde cases cited by the majority opinion, those banks, in addition to being private banking corporations, issue their own bank notes. The Bank of North Dakota does no such thing, nor has it attempted to. It uses the money and bank notes authorized by the Constitution of the United States; in short, our common medium of exchange. Their is no similarity or analogy between the cases cited in the majority opinion and the case at bar. No refined theory, or well-phrased language, can create any analogy or similarity. It is impossible.
We now desire to consider § 22 of chapter 147. The majority opinion, with reference to that section, uses the following language: “Furthermore, the act specifically grants the power to such bank (the Bank of North Dakota) to sue and be sued, the same as in any ordinary civil action, with all of the provisions of the Code of Civil Procedure applicable.”
That section is set out in full in the majority opinion, and we will analyze it. First, it provides: “Civil actions may be brought against (whom?) the state of North Dakota, on account of causes of action claimed to have arisen out of transactions connected with the operation of the Bank of North Dakota, upon condition that the provisions of this section are complied with.”
Now, against whom does that language say the action may be brought? Think of that language. Bead it as it is written. Give it a fair and unbiased construction and interpretation, and let me have your answer. Does 'it say actions may be brought against the *599Bank of North Dakota, on account of causes of action claimed.to have arisen out of transactions connected with its operation? It certainly does not. It says that such actions may be brought against the state of North Dakota. Then what? It further says, “In such actions;” and we stop again to inquire: What actions are meant by the words “such actions?” And I again pause for an answer.
The words “in such actions” refer to what has been stated. It means in the actions brought against the state of North Dakota, on account of causes of actions claimed to have arisen out of such transactions, etc. It says, in plain language, in such actions the state shall be designated as the state of North Dakota, Doing Business as the Bank of North Dakota. The words “doing business as the Bank of North Dakota” are descriptive only of the relation of the sovereign powers being exercised by the state.
No distorted construction of language can read out of the language quoted, any authority of the Bank of North Dakota to bring a suit, or any authority for it to be sued. We challenge any member of this court who has signed the majority opinion, to place his finger on the language in the statute, that says anyone can be sued, excepting the state of North Dakota. I not only challenge, but I defy. I would be willing to leave the interpretation of this statute to a thousand of the most eminent lawyers and judges in the United States, and I dare say not a single one would say. that the Bank of North Dakota, as such, by the terms of this statute, has any authority to sue or be sued.
The language is too plain. It needs no interpretation. Elaboration of explanation or analysis only confuses. Such language as is used in this statute is not capable of being elaborated upon. It is plain; it is simple; it is clear; it construes itself; it admits of no construction other than that the state of North Dakota, in its sovereign capacity, is alone the only entity against whom a suit may be brought, and who has the authority to bring a suit, with reference to any transaction connected with the Bank of North Dakota; for it is this state that is in the banking business. That is the language of the statutes above quoted. It may not be denied. It shall not be denied.
Section 22 further says: “And the service of process therein shall be made upon the manager of said bank.” Who is the manager of the bank? What are his powers and relations to the bank? The act *600creating the Industrial Commission, as above pointed out, makes him the general agent of the Industrial Commission, and we have above pointed out the qualities, characteristics, and powers of the Industrial Commission, which, in short, represents, and is, the sovereignty of the state, acting.
The plaintiff, in bringing this action, in the form and character of its summons and complaint, and its affidavit for garnishment, has construed the act just as we are contending that it must be construed. The suit here is brought against the state of North Dakota. In other words, the summons is in harmony with those provisions of § 22, which wé have just analyzed. The complaint likewise makes the charges against the state of North Dakota, and in the affidavit of garnishment, after mentioning the various banks, who does the maker of the affidavit say is indebted to the plaintiff? It says, naming those banks, that each of them “is indebted to and has in its possession, money and credits belonging (to whom?) to the defendant, the State of North Dakota, Doing Business as the Bank of North Dakota.”
Who is it that is doing business as the Bank of North Dakota? The only answer possible is, the state of North Dakota.
Section 22 provides: “Such actions may be brought in the same manner, and shall be subject to the same provisions of law, as other civil actions brought pursuant to the provisions of the Code of Civil Procedure.”
The only effect of that provision is that the state consents to be sued in an ordinary action. It means that the summons and the complaint may be used in-the same manner as in any other action. That is, that the action may be brought against the state of North Dakota, by the service of a summons, just the same as against an individual in any other civil action.
The word “action” is defined in § 7075, Comp. Laws 1913, as follows: “Action includes counterclaim and set-off.”
In § 7355, Comp. Laws 1913, it is stated: “The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing are abolished; and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. In such action the party■ com*601plaining shall be known as the plaintiff and the adverse party as the defendant
Section 7420 provides that an action shall be commenced by the service of a summons. Section 7422 prescribes the form of that summons. An action cannot be commenced by a garnishee summons.
By chapter 9 of the Code of Civil Procedure a garnishment is not classified as an action, but is classified as a provisional remedy in civil actions.
Section 7487 classifies the provisional remedies in civil actions as:
(1) Arrest and bail.
(2) Claim and delivery of personal property.
(3) Injunction.
(4) Attachment.
(5) Garnishment.
(6) Receivers.
(7) Deposit in court.
All of these remedies are part of the Code of Civil Procedure. Under the effect claimed to be given by the majority opinion to that part of § 22, which provides that actions may be brought in the same manner, and shall bo subject to the same provisions of law as other civil actions brought pursuant to the provisions of the Code of Civil Procedure, all, of such provisional remedies would be as available as garnishment. Where is the difference and why the distinction?
If, under the language of the act, garnishment will lie because that provisional remedy is found in the Code of Civil Procedure, on the same parity of reasoning every other provisional remedy would apply.
As we understand and construe § 22, it refers to a general action, and not to any provisional remedy. By that section the state has simply consented to be sued, and thus afford an opporunity' to determine any controversy on its merits that may arise out of any of its transactions, in its conduct of its banking interests.
If, in such action, a judgment should be procured against the state, § 8177 would apply. So that no execution could.issue against the state, and no better remedy is needed than is contained in § 8177; for when a judgment is obtained in any action against the state, the clerk of court simply makes a certified copy of such judgment, and furnishes it to the state auditor, who, in the due course of the conduct *602of his duties, will draw his warrant upon the state treasurer, for such' amount, and deliver the same to the person entitled thereto.
That may be done in this case, but garnishment will not lie against sovereignty, any more than injunction or receivership would lie. Certainly no receivership could be applied for or allowed, as that would be asking for a receiver for the state of North Dakota; for, as we havo seen, it is the state of North Dakota, and the state of North Dakota only, who, under the constitutional provision and laws above mentioned, is actually engaged in the banking business, under the name of the Bank of North Dakota.
We feel eei’tain that our position in this case is unassailable, and in closing we wish only to add:
If these state-owned-and-operated industries are to be annihilated, let it be done by the same agency that created them, — by the people of this state, in the exercise of their sovereign power. Let them do it, if they desire, by the exercise of their elective franchise. In the exercise' of this sovereign right, they have authority and privilege to amend the Constitution, or laws, and to enact or repeal laws by and through the legislature. If the people of this state do not wish these state-owned-and-operated industries, they may dispense with them by an exercise of the elective franchise, the majority concurring.
But let not this court, by judicial fiat, strike down these state-owned-and-operated industries, and thus deny the people the rights and privileges which inured to them by the amendment of § 185 of our Constitution and the laws enacted in pursuance thereof, and which authorized and created these state-owned-and-operated-industries.
I beg of my associates (each of for whom I have the utmost respect) to halt, and reflect, before they, by their decree, strike down sovereign rights of a great and good people, which rights emanate from § 185 of the Constitution, as amended, and the laws above mentioned.
The rights which the people of our beloved state have thus acquired, under that section of the Constitution and those laws, have come to them only after many decades of incessant struggle, and perseverance, and against the fiercest and most unrelenting opposition; opposition in the form of great and concentrated wealth; opposition of corporate greed; opposition of great and vested interests, and opposition of part of the public press, which part in general champions the *603right of those enjoying and exercising special privileges and controlling great wealth, to gain unjust advantage over the common people, and the laborer, the farmer, who are the producers of real wealth, and which part of the public press listens joyously to the siren song of its advertisers, and too often disregards its own sacred duty, yes, its constitutional duty, to defend the rights, privileges, and liberties of the people, for we confidently believe that our justly venerated constitutional fathers would not have so securely thrown the mandate of Federal constitutional protection about the public press, if it had been thought that part of that public press should so far deviate from its true course of conduct and duty as to become the champion and defender of the economically great and powerfully represented in perfect organization, as against the economically weak, the unorganized common and wealth-producing citizen whose greatest ambition in life is to labor and serve faithfully and well his God and his country.
A volume might be written, portraying the opposition encountered in securing the rights provided for in § 185, as amended, and the laws above referred to. But it is not necessary. That opposition, its character, its tenacity, its nature, is a matter of common knowledge.
In conclusion, we assert that the majority opinion, in the conclusions arrived at therein, is clearly nothing less than judicial legislation. The conclusion which it draws are so patently erroneous when compared with the laws above mentioned, that this becomes obvious on the merest inspection.
The majority opinion in "effect concedes that all the industries above instituted and initiated by the state of North Dakota are so initiated for a public purpose. It does this because it recognizes the correctness of the decision in the case of Green v. Frazier, 44 N. D. 395, 176 N. W. 11, as handed' down by the court, and as affirmed by the Supreme Court of the United States.
The majority opinion contains this language:
“It may not be denied that the state of North Dakota, pursuant to constitutional and statutory enactment, has engaged in the business or enterprise of banking. No question is raised in that regard. In the ease of Green v. Frazier, supra, this court determined that the engagement of the state in such enterprise was for a public purpose to accomplish the objects sought thereby. Upon writ of error to the *604Supreme Court of the United States, that court declared that the united judgment of the people, the legislature and the court of this state that the purposes involved were public, would be accepted unless clearly unfounded, and such court declined to set aside the action of this state in that regard.”
The majority opinion therefore admits that all of these industries, including’ the Bank of North Dakota, were created and exist for a public purpose. If so, they are conducted by the state of North Dakota in its sovereign capacity. This being true, those industries may be supported by taxation of private property. Under the admissions in the majority opinion above set forth, the contention therein that these industries are quasi private corporations falls flat. The fact that none of these industries can sue or be sued, as we have very clearly above pointed out, also operates to destroy entirely the contentions of the majority opinion. These industries, being for a public purpose and use, as is conceded by the majority opinion, cannot therefore Ire, bjr any stretch of imagination, denominated as private corporations, or quasi corporations, of the same general nature as any other private business corporation.
Further elaboration cannot show more clearly that the majority opinion is clearly, conclusively, and absolutely erroneous. Justice to the public requires that the order appealed from should be reversed, and the case remanded, and the District Court ordered to dismiss the garnishment proceedings.