(further dissenting). The defendant, the sovereign state of North Dakota, has filed a petition for rehearing, which, unquestionably, should be granted. The importance of the issues involved; the deleterious effects which will inure to the people of this state if the majority opinion becomes final; the failure to give the plain and unmistakable intent of the provisions of the Constitution and laws, mentioned in my previous dissent, to those provisions and laws; the denial to the state of North Dakota of the right to engage in business in its sovereign capacity, though authorized to do so by the constitutional provisions and laAvs heretofore referred to in my former dissent, are each and all matters of great and far-reaching importance, directly affecting the happiness, prosperity, and right of self-government of the people of this state. Hence, they should not be decided and determined in the manner that the majority opinion, including the majority opinion upon petition for rehearing, does determine them, nor until further investigation of the legal principles involved, nor.until further analysis by counsel, including the attorney general of this state.
The majority opinion, upon rehearing, clearly does not attempt an answer to the reasoning of my previous dissent. The reasoning and the principles stated in that dissent are so plain and so clearly right that, should the majority attempt to analyze them, they would soon find their position indefensible. The laws and the constitutional provisions, referred to in our former dissent, so plainly show that the *627state of North Dakota, in its sovereign capacity, is engaged in business, that any contention to the contrary is absolutely useless.
To say that the state of North Dakota is not, in its sovereign capacity, engaged in the banking business, or in the mill and elevator business, or in the home building business, is to contend against the plain words of the statutes, authorizing the state, in its sovereign capacity, to engage in those businesses. To contend that the state, in its sovereign capacity, has not authority to do so, is to contend against the plain provisions of § 185 of the Constitution, as amended.
The state of North Dakota is engaged in the banking business, in its sovereign capacity, as the Bank of North Dakota. The majority opinion in effect holds that the Bank of North Dakota is a private institution.
The public and the public press have generally construed the meaning of the majority opinion to be that the Bank of North Dakota is a private institution. No other conclusion can be derived from the plain language of the majority opinion.
The state of North Dakota has, in its sovereign capacity, engaged in all of these businesses heretofore-mentioned, including the banking business, and, to do so, it was necessary to resort to taxation of private property within this state. In order to warrant this step, it is necessary that the business engaged in be for a public purpose and a public use; and such are the businesses above mentioned. Hence, they cannot be private, as is clearly the conclusion of the majority opinions. The majority are forced into one position or the other.
In the case of Green v. Frazier, 44 N. D. 395, 176 N. W. 11, these constitutional provisions and laws were construed, and it was held, by this court (Justice Christianson dissenting), that the state was engaging in business in its sovereign capacity. This opinion, as we have before stated, was affirmed by the Supreme Court of the United States. See Green v. Frazier, 253 U. S. 233, 64 L. ed. 878, 40 Sup. Ct. Rep. 499.
Since the decision of the Green v. Frazier Case, there has been no change in either the constitutional provisions nor the laws in question. They remain the same as they were at the time that case was finally terminated. If there has been a change in the opinion of the majority of those who signed the opinion of the writer thereof, who *628is the writer hereof that would not operate to change the fact that the constitutional provisions and laws in question there remain the same and unchanged, and mean the same now as they did then.
We are unable to determine whether the majority who signed that opinion have changed their minds. The majority in its opinion upou rehearing has, figuratively speaking, created a dust cloud, which may, to some extent, obscure the vital issues heroin involved, but, notwithstanding this, we are able to look through and beyond it, to the sunlight of truth, which is found in the constitutional provisions and laws aforesaid.
The dust cloud consists in a weak endeavor to show that the state of North Dakota heretofore established a certain so-called agency of the state of North Dakota, and that such agency has a separate and distinct status from the state, and is seeking to apply the alleged analogy to the State of North Dakota, Doing Business as the Bank of North Dakota. In other words, seeking to show that this alleged agency has a separate and distinct status from the state.
These agencies are claimed to exist, with reference to several different subject-matters. The first of these is the state bonding fund, as created by chapter 62, Laws of 1915; the state hail insurance fund, chapter 23, Laws of 1911, chapter 160, Laws of 1919; state fire insurance, chapter 159, Laws of 1919; teachers’ pension fund, chapter 251, Laws of 1915; workmen’s compensation bureau, chapter 258, Laws of 1919; The United States Shipping Board, Emergency Elect Corporation, a Federal Corporation, created by act of Congress.
The majority opinion, after reciting these various state laws creating certain funds, asks: Were not agencies of th.e sovereign power created? We answer, Absolutely no.
We cannot take time nor space to analyze all these laws creating the various funds. We will examine the State Bonding Fund Law, chapter 62, Laws of 1915, and let that suffice.
Firstly, the creation of a fund for a specific purpose, where the fund is to be accumulated, not by taxation by the state, of private property, but by payment into the state treasury, of the equivalent of certain premiums theretofore paid by various municipalities, in procuring the bonding of their officers by private agencies, is an entirely distinct matter, than where the state, in its sovereign capacity, engages in the *629business of bonding, where, in such case, it would assume liability for losses, and become responsible, in its sovereign capacity, for the payment of those losses, and where, in order to engage in that business, it would be necessary for it to levy a tax upon the private property in the state, to secure a fund.
In the so-called state bonding fund, the state, in its sovereign capacity, never could, under the law creating that fund, become liable for a single dollar.
Section 11 of that act provides that it shall not become liable. Ail that the State Bonding Fund Law did, was to require the different municipalities to pay the premiums, the amount thereof which is specified in the law, into the state treasury, and to be accumulated there as a state bonding fund.
The Commissioner of Insurance was to issue the bond, not the state of North Dakota, nor the Commissioner of Insurance acting for the state of North Dakota. Of course, if an action were necessary to recover upon any of such bonds, it could not be maintained against anyone else excepting the Commissioner of Insurance, for the state of North Dakota was not liable. The state was not in business; it did not bond anyone by that law; it assumed no liability nor responsibility for payment of those bonds. By that law, and all similar laws, referred to in the majority opinion, the state had simply exercised its police power, without incurring any responsibility in its sovereign capacity for so doing.
None of such funding laws make those intrusted with the handling and disbursement of those funds, agencies of the sovereign state, and none of them are agencies of the sovereign power.
All hail insurance laws, prior to the enactment of chapter 160, Laws of 1919, were amended and superseded by chapter 160. By chapter 160, the state entered the hail insurance business, in its sovereign capacity, and prescribed a fund out of which hail losses are to be paid, and also that said fund shall be raised by taxation; the amount that may be so raised by taxation, and the manner of levying that tax, is specified in that chapter. But neither the state nor the Insurance Commissioner can be sued for any loss. The state, in its sovereign capacity, has prohibited that, so that chapter 160 is strictly not in point, and does not support the majority opinion; and the analogy *630sought to be created by the state bonding fund, and other similar funds, absolutely fails when applied to the state of North Dakota, engaged in the banking business.
But the majority opinion on rehearing, after reciting the State Bonding Bund Law and laws similar to it, and after seeking to show that the state bonding fund was an agency of the state of North Dakota, and the same with other laws creating similar funds, has the temerity to ask the following questions :
“Was not an agency created when the legislative act established the Bank of North- Dakota ?”
The question above asked by the writer is the one we have been endeavoring to get him to answer. Lie answers by asking the question. We will answer it. The answer to it is § 1 of chapter 117. It is as follows:
“Bor the purpose of encouraging and promoting agriculture, commerce, and industry, the slate of North Dakota shall engage in the business of banking, 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.”
Section 1 is a complete answer to that question. It speaks for itself. Its meaning is plain. It cannot be misunderstood. Does it not say plainly, that the state of North Dakota shall engage in the banking-business ? Does it not say that it shall own that banking business ? Does it not say it shall operate that banking business ? It says plainly, that it, the stale of North Dakota, shall do a banking business, and it says,. also, in § 22, that “civil actions may be brought against the state of North Dakota, not against the Bank 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, etc.”
Section 21: "Title to property pertaining to the operation of the barde shall be obtained and conveyed in the name of the State of North Dakota, Doing Business as the Bank of North Dakota. Written instruments shall be executed in the name of the state of North Dakota, signed by any two members of the Industrial Commission, etc.”
All of these statutory provisions so plainly written in simple language are easy of comprehension. They all mean but one thing, and that is, that the state of North Dakota, in its sovereign capacity, is *631engaged in the banking business, as it may lawfully do, by the provisions of § 185 of the Constitution as amended, and chapter 147 of the Laws of 1919, and other laws enacted to carry the intention of that act into effect.
There is not a word in the act creating an agency which shall engage in the banking business, but the act plainly provides that the stale itself shall engage in the banking business. No amount of elaboration can make this statute plainer than it is. It is susceptible of but one construction, and it is that which we have given it.
Again, the majority opinion asks, and in asking assumes, something which does not exist, to wit, the agency.
“Does this agency function the same as the state ?”
The answer is, It is not an agency functioning, for no agency exists, but it is the state that is functioning in its sovereign capacity.
Another question: “Why does this agency do a business under a distinct name, and all of its dealings under the head “Bank of North Dakota ?”
Again, the word “agency” is improperly and unauthoyitatively used, contrary to any intent of chapter 147. But the answer to that question is: That § 1 of chapter 147 provides that the state of North Dakota shall engage; in the business of banking, under the name of the Bank of North Dakota. That means that when the state of North Dakota engages in the business of banking, in its sovereign capacity, its transactions in the banking business shall be transacted under the name of the Bank of North Dakota, and, as explained in my previous dissent, the words “under the name of the Bank of North Dakota” are merely descriptive, and are used to distinguish the engagements of the sovereign state of North Dakota, in business of banicing, from its engagements, in its sovereign capacity, while engaging in the mill and. elevator business, etc.
The language and intent of the statute in this regard are so plain as not to admit of controversy. They are self-evident.
The next question asked is:
“Are its funds (state of North Dakota, Doing Business as the Bank of North Dakota) public funds ?”
In answering this question, wo return to § 185 of the Constitution as amended, which authorizes the state, in its sovereign capacity, to *632engage in the hanking business. Section 9 of chapter 147 provides:
“The Bank of North Dakota may receive deposits from arty source, ineluding the United States government and any foreign or domestic individual, corporation, association, municipality, bank, or government. Funds may be deposited to the credit of the Bank of North Dakota in any bank or agency approved by the Industrial Commission.”
If public funds of a county, township; or municipality are deposited in the Bank of North Dakota, they remain public funds of the county, township, or municipality, and are deposited with the state of North Dakota, in its sovereign capacity, exercised in doing a banking business in accord with the authority conferred by § 185 of the Constitution as amended, and chapter 147 of the Laws of 1919, and other laws enacted to carry that act into effect; and the obligations and indebtedness, if any, created, are the direct indebtedness of the state of North Dakota, in its sovereign capacity, engaged in the banking business.
Whether any such indebtedness exists is a question to which we will later refer, and to some extent then discuss, though no discussion thereof is proper in this case.
The next question asked reads thus: (Further questions asked in the majority opinion will be indicated by the word question.)
“Is a deposit made by Jones, a private person, made a public fund, subject to disbursement by the state in payment of governmental expenses of the state?”
Section 9, supra, authorizes the receiving of deposits by private persons, and such a deposit would be and remain a private deposit, with a public institution, to wit, The State of North Dakota, Doing Business as the Bank of North Dakota.
Governmental expenses of the state of North Dakota are all provided for by law, and hence no necessity of using the deposits of private persons to pay governmental expenses.
Is not the salary of each of the judges of this court always provided for by law? Likewise, the governor, the legislators, and all other state officers and officials? Clearly, the question asked is superfluous and meaningless.
Question: “When $1,000,000 was borrowed in Chicago and a note given therefor, was such a note a direct indebtedness of the state or of the bank ?”
*633The answer is clear, that it was the indebtedness of the state, for it is the state of North Dakota that is engaged in the banking business, in its sovereign capacity, and this in pursuance of article 185 of the Constitution as amended, and chapter 147 and laws supplementary thereof. No other answer is possible.
Also, it may be observed, the $1,000,000 or $2,000,000, or whatever the amount may have been, of collateral security in the way of bonds, which were deposited with the Chicago Bank, to secure the $1,000,000, were the property of the state of North Dakota, in its sovereign capacity, and when the state of North Dakota, in its sovereign capacity, and in doing business as such, as the Bank of North Dakota, borrowed that $1,000,000, it, we may observe, did not increase its indebtedness a single dollar. Bor the Chicago Bank at all times had in its possession more property of the state of North Dakota, in the form of its bonds, than it had loaned money to the State of North Dakota, Doing’ Business as the Bank of North Dakota.
Question: “Were the millions of dollars on deposit in this bank in July, 1919, deposited by municipal subdivision, private banks, and private individuals, state public funds, and funds for which the state was directly obligated as such?”
We will answer this question in connection with the obiter dicta discussion thrown into the majority opinion, relative to the constitutional limitation of state indebtedness.
We wish now to answer one further question asked in the majority opinion, which is as follows:
“Was the United States Shipping Board Emergency Bleet Corporation created by the United States, with a capital stock of $50,000,000 all owned by the United States, and stated by congressional act to be considered a government establishment, the United States, or, an agency thereof ? ”
Answer: It was neither. It was just a simple, plain corporation, and the United States Supreme Court applied the same reasoning to it as I have analyzed in my previous dissent, in the Bank of United States v. Planters’ Bank, 9 Wheat. 904, 6 L. ed. 244, and Briscoe v. Bank of Kentucky, 11 Pet. 257, 9 L. ed. 709. The United States Supreme Court, in the case of United States v. Strang, 254 U. S. 491, 65 L. ed. 368, 41 Sup. Ct. Rep. 165, in analyzing the nature and *634functions of the United States Shipping Board Emergency Fleet Corporation, said of it, in an opinion written by Mr. Justice Beynolds:
“Counsel for the government maintain that the Fleet Corporation is an agency or instrumentality -of the United States, formed only as an arm for executing purely governmental powers and duties vested by Congress in the President, and by him delegated to it; that the acts of the corporation within its delegated authority are the acts of the United States; that therefore, in placing orders with the Duval Company in behalf of the Fleet Corporation, while performing the duties'as inspector, Strang necessarily acted as agent of the United States. The demurrer was properly sustained.
“As authorized by the Act of September 7, 1916 (39 Stat. at L. 728, chap. 451, Comp. Stat. § 8146a, Fed. Stat. Anno. Supp. 1918, p. 785), the United Stales Shipping Board caused the Fleet Corporation to be organized (April 16, 1917) under laws of the District of Columbia, with $50,000,000 capital stock all owned by the United States, and it became an operating agency of that board. Later, the President directed that the corporation should have and exercise a specified portion of the power and authority in respect of ships granted to him by the Act of June 15, 1917 (40 Stat. at L. 182, chap. 29), and he likewise authorized the Shipping Board to exercise, through it, another portion of such power and authority. See The Lake Monroe (Re United States) 250 U. S. 246, 252, 63 L. ed. 962, 966, 39 Sup. Ct. Rep. 460. The corporation was controlled and managed by its own officers, and appointed its oiun officers, and appointed its own servants and agents, who became directly responsible to it. Notwithstanding all its stock was owned by the United States, it must be regarded as a separate entity. Its inspectors were not appointed by the President, nor by an officer designated by Congress; they were subject to removal by the corporation only, and could contract only for it. In such circumstances,. %ve think they were not agents of the United States, within the true intendment of § II.”
Then, the United States Supreme Court cites in support of these contentions, Bank of United States v. Planters’ Bank, and other similar cases, including Briscoe v. Bank of Kentucky. The same authority is cited in the majority opinion of this court, in its endeavor to show that the state of North Dakota was not, in its sovereign capac*635ity, engaged in the banking business, but that the Bank of North Dakota was a private banking institution, all of which authority, I conclusively show, through my former dissent, had no application to the questions, circumstances, or conditions involved in this case.
It is not necessary to elaborate upon the opinion of the United States Supreme Court, in the ease of United States v. Strang, supra. So plainly it is against the theory of the majority opinion that it would be superfluous to make further comment upon it. It speaks for itself.
Since we have finished with that case, let us, now, take a case or state of facts which will, in reality, show the United States government, in its sovereign capacity, engaged in business, and thereby determine its course of conduct when it is so engaged. When the United States formally and constitutionally declared a state of war to exist between the United States and the Empire of Germany and its allies, it thereafter proceeded to directly engage in business in many respects. One illustration will be sufficient.
President Wilson, by virtue of the power reposed in him as Commander in chief of the United States Army and Navy, and for war purposes, by a proclamation, duly issued, took over and operated during the period of the war, and for one year thereafter, all, or practically all, of the railroads of the United States. ' Such railroads-were all operated and controlled, absolutely, by the United States government during the time for which they were so taken over and retained.
The President appointed a director general to control and operate such railroads. In other words, the United States, in its sovereign capacity, through President Wilson, did this, just as the state of North Dakota, acting in its sovereign capacity, created the Industrial Commission to manage the banking business of the state of North Dakota, and the mill and elevator business, etc., and which Industrial Commission appointed a director general or manager of the banking business of the state of North Dakota.
Now, the United States, in its sovereign capacity, did operate and control those railroads during all the time above mentioned, and it, among other things, became subject to suit for damages for its negligence in the operation of those railroads. ' That suit was authorized to be brought against the Director General, but the suit in fact was *636against the United States. For instance, if an employee of the United States, assisting in operating the railroads, for example, a brakeman,. who, through the negligence of the United States, in the operation of the railroad, should be injured, by having his legs cut off, sustaining thereby great and irreparable damage, against whom, let us ask, should the employee bring the suit? He would bring.it against the Director General, who represented the United States government; and let us suppose that he recovered a judgment of $10,000, could he get an execution out and levy upon some of the property of the United States, or could he garnishee some of its money in its postoffices ? No. Nothing of this kind.
The judgment, while nominally against the Director General, was, in fact, a charge against the United States government, and was, in due course, paid out of the United States Treasury, either from profits earned by the operation of the railroads by the government, or by appropriations of Congress, to make up any deficiencies which accrued to the United States in its operation of the railroads.
Who did the Director General represent while acting in his position? The answer is plain: The United States government. If a suit were brought against the Director General, against whom, in fact, was it brought ?
The answer must be, against the United States.
If the Director General made an order, as he did make thousands of them, with reference to the conduct of the railroads, whose order, in fact, was it?
Answer: It was the order of the United States government.
If the Director Gcnei’al placed an order for the construction of 5,000 new freight cars, who became responsible for the payment of them?
Answer: The United States government, and they were paid for out of the United States Treasury.
If a wreck occurred on the railroad, by reason of trains meeting in collision, and this through the negligence of some employee of the United States, engaged in assisting in the operation of the railways, and there -resulted $100,000 in damages, which were recoverable by an action, who was liable in damages ?
Clearly, the United States government
*637Likewise, the United States government, through President Wilson, increased the freight and passenger rates. Whose act was that but that of the United States government? And that act or order was by members of this court who signed the majority opinion in the present case, with the exception of Justice Bronson, in the case of State ex rel. Langer v. Northern P. R. Co. 43 N. D. 556, 172 N. W. 324, declared illegal; they in effect said, the United States government had no authority to increase such rates and fares. The writer hereof, however, dissented from the majority in that case, and said in his dissenting opinion, the United States government did have the right and authority to increase such rates and fares.
Prom the decision of the majority, in that case an appeal was taken to the Supreme Court of the United States, and the decision of that court in effect made the dissenting opinion of the writer hereof in that case the law of that case. In other words, it, in substance, affirmed the dissenting opinion of the writer in that case, and necessarily reversed the opinion of the majority. See Northern P. R. Co. v. North Dakota, 250 U. S. 135, 64 L. ed. 897, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502, 18 N. C. C. A. 878.
So that we discern the United States government, in its sovereign capacity, did go into the railroading business, and during that time, no matter through whom the act was done, with reference to the management and operation of the railways, all of those acts were the acts of the United States government; and if the railways were in many instances negligently operated, so as to result in damages, the United States became answerable for those damages, and never denied liability after such damages were properly established, but paid them in due course through the Treasury of the United States. See Gladstone Eq. Exch. Co. v. Hines, ante, 454, 182 N. W. 763.
The United States also took over the telephone and telegraph lines, or most of them, within the United States. It took over various other industries and operated thorn, in its 'sovereign capacity. In other words, the United States, in its sovereign capacity, was doing business. It had engaged in industry, as it then lawfully might do, just as the state of North Dakota, by § 185 of the Constitution as amended, was duly authorized to engage in industry.
The state of North Dakota, in its sovereign capacity, doing business *638as the Bank of North Dakota, or doing business as the Mill & Elevator Association, or as the Home Building Association, is operating and functioning in its sovereign capacity, and its business is carried on by those who, by legislative authority of the sovereign state, are authorized to carry it on, to wit, the Industrial Commission, just the same as the business of railroading was carried on for the United States, by all those employed by the United States to carry on that business, and who, while so employed, were employed by and acting for the United States. It operated and controlled the railways, in its sovereign capacity; and that situation, and that only, is parallel with the state of North Dakota, in its sovereign capacity, engaging in the different businesses heretofore mentioned, including the banking business.
Principles of law and rules of construction thereof applicable to the United States, when so engaged, are analogous to those principles of law and rules of construction which must be applied to the state of North Dakota, in its sovereign capacity, while engaged in industry and business, as authorized by § 185 of our Constitution as amended, and chapter 147 of the Laws of 1919, and laws enacted supplementary thereof.
Applying this test, we can reach but one conclusion, and that is, the state of North Dakota is engaged in business in its sovereign capacity. It did not create any corporations or associations, to transact that business for it. But the state of North Dakota, in its sovereign capacity, is transacting all that business, by and through the Industrial Commission, duly authorized and created by law, the membership of which consists only of state officers, to wit, the governor, commissioner of agriculture and labor, and the attorney general, none of whom receive any increased compensation for their services, but who at all times, as state officers and as members of the Industrial Commission, are executing the sovereign powers of the state of North Dakota.
We now approach the duty of answering another and a final question asked in the majority opinion, viz.: “Were the millions of dollars on deposit in this bank in July, 1919, deposited by municipal subdivisions, or private banks and private individuals, state and public funds and funds for which the state wms directly obligated as such ? ”
By this question, the majority seek to introduce into this case the *639question of the constitutional debt limit of the state. Nor what reason has the majority of this court introduced this question? It is nowhere involved in the case. It is not an issue nor a point in the case. It has not been raised by either side. It is not in the pleadings nor the record. It has been the universal rule of this court, and especially has it been the rule of the members who signed the majority opinion, that a constitutional question would not be decided unless presented on the appeal, and not then unless a decision thereof was necessary to a decision of the case. In other words, if a case is presented before this court, involving a constitutional question, as well as other points, and it can be decided upon the other points, without deciding the constitutional question, that is the course that is pursued.
In view of that rule, I am unable to comprehend the reason for the interpolation here of the question of the constitutional debt limit. A discussion thereof, as we view the matter, can only have the effect to distract attention from, and obscure, the real questions in this case, which are such only as I have stated in my former dissent.
Manifestly, anything said in the majority opinion, or in my dissent, or that I may say in this further dissent on that question, can be nothing but obiter dicta. In other words, it will be of no force nor effect. It will amount to nothing, and decides nothing.
When the question of the constitutional debt limit is properly and legally presented to this court, and it becomes necessary to determine that broad question in all its aspects, I shall not hesitate nor fail to analyze that question most thoroughly; nor shall I have any hesitation nor fear to express myself at that time, fully, on that question; and I have not the least doubt at that time, that I shall declare what I believe to be the constitutional debt limit. At that timo, also, it will be the proper time to determine what, in fact, is a debt, or what is indebtedness, as those terms are to be defined in determining the constitutional debt limit as it exists at this time. But the inquiry is, whether the millions of dollars on deposit in the bank in July, 1919, were state public funds. In other words, the question is: Was there a liability on the part of the state to repay such deposits ? Thereby, intimating that the state was in debt to that extent.
Well, let us see. Let us assume that, July, 1919, the state of' *640North Dakota, Doing Business as the Bank of North Dakota, received $10,000,000 of deposits, of various kinds, including deposits by private persons, associations, or corporations. This would nominally create the relation of debtor and creditor between the state of North Dakota and those depositors, and the State of North Dakota, Doing-Business as the Bank of North Dakota charges itself on its books with the $10,000,000 of deposits.
Now, what does-the state do with those $10,000,000 deposits? It redeposits the same in various banks of the state, both national and state, and perhaps a portion thereof is deposited in national and state banks outside of the state. Then, on its books it charges against all those banks, in the respective amount deposited with each, all of the $10,000,000. Now, by that transaction, has the state increased its indebtedness a single dollar? Will the books of the state, which it keeps in doing its banking business, show that it is in debt a single dollar by that transaction? Has the state, in fact, in reality increased its indebtedness? Or, if the state of North Dakota, doing a banking business, invests part of those deposits in United States bonds, or warehouse receipts, or assets which it may lawfully purchase, which are worth a hundred cents on the dollar, or an asset which is secured by two or three times its face value, has the state by these transactions created any debt?
We will set forth the expression of the Supreme Court of the United States on that principle. In the case of Darrington v. Bank of Alabama, 13 How. 12, 14 L. ed. 30, the Supreme Court of the United States speaking through Mr. Justice McLean, used the following language:
.“The bank had not only an ample fund for the redemption of its paper, but a summary mode was provided by which the payment of its bills could be legally enforced. And the directors were personally liable, if the issues of the bank exceeded twice the amount of its capital paid in. And besides, the notes and bills of exchange taken on its discounts enlarged the means of the bank, and increased the security of the bill holders. The charter of the bank gave to it all the means of credit with the public, that banks usually have or could desire. That some reliance may have been placed on the guaranty of the eventual payment of the notes of the bank by the state may be *641admitted. But this was a liability altogether’ different from that of a state on a bill of credit. It was remote and contingent. And it could have been nothing more than a formal responsibility, if the banlc had been properly conducted. No one received a bill of this bank with the expectation of its being paid by the state.”
Now, why was it that the Supreme Court of the United States stated that the liability of the state on its guaranty of the payment of the notes of the banks of Alabama was remote, contingent, and nothing more than a formal responsibility, if the bank had been properly conducted? Certainly, it was because the bank being properly conducted, and its deposits being maintained intact, or in the equivalent of assets worth a hundred cents on the dollar, and this would be true if the bank were properly conducted, the state of Alabama would have no liability on its guaranty.
The state Bank of Alabama was, under certain restrictions of the Constitution, duly authorized, and in pursuance thereof the general assembly of that state were authorized to establish a state bank with branches.
In 1823, the state banlc was established by. funds of the state then in the treasury, and a loan obtained from an issue of state bonds. In 1832, the bank at Mobile was established, with a capital stock of $2,-000,000, procured from a sale of the bonds of the state. The Bank of Alabama was organized as a corporation, and, by the charter, a president and fourteen directors were annually elected by the legislature. The corporation was authorized to issue notes of a denomination of not less than $1. The ordinary powers of a banking corporation were conferred, with a prohibition of owing debts aggregating twice the amount of capital; and the directors were made' personally responsible for any excess indebtedness of the bank assented to by them.
The state of Alabama was the only stockholder of the bank. Certain bills were issued by the bank. In the charter creating the bank, the credit of the state was pledged to redeem the notes of the bank, and it was with reference to that pledge, or in a sense guaranty, that the United States Supreme Court used the above language, demonstrating that such liability of the state could only be contingent or formal, etc., if the bank were properly conducted.
*642So, we may reason, if the State of North Dakota, Doing Business as ■ the Bank of North Dakota, properly conducts that banking business, and receives $10,000,000 deposits from various sources, and redeposits the same in other banks within the state, or mostly within the state, it would scorn to a reasonable mind that the liability of the state of North Dakota for such deposits would be a mere contingent or formal responsibility. In other words, there would likely, in fact, be no debt, or indebtedness, thereby actually existing. Dor, it at all times has on redeposit the same amount of money which it received from the depositors to repay them, or it has the equivalent thereof, in assets worth a hundred cents on the dollar. The indebtedness, in these circumstances, would in all probability be properly denominated as merely ' nominal or formal.
In other words, the pertinent query is: If the state, in its sovereign capacity, doing a banking business, receives $10,000,000 of deposits, and retains the same, or redeposits it, and at all times has possession or control of it, or if part of it has been invested in gilt-edged assets, and it has those assets, all of which are equivalent to the $10,000,000, has the state incurred any indebtedness? This, and kindred questions, will be analyzed to their finality, when the question of the constitutional limitation of the state’s indebtedness is presented in all its aspects. It is impossible and improper to go into that question - in this case. It was not presented to the trial court, and is not in the record on appeal presented here. Further obiter discussion of that subject would be useless.
The issues presented in this case are simple and clearly defined. They should not be obscured by the introduction of extraneous questions in no way involved in the case.
But Justice Birdzell has also filed a long opinion on rehearing, in which he introduced severel additional constitutional questions, none of which are involved in this case. Nor are they contained in the record, nor presented in the appeal. All of them are absolutely extraneous to the questions involved in this case, and which are presented by the record. As above stated, the only effect of introducing such extraneous questions is to obscure the real questions involved in this case, which, are only two, as shown in my ‘former dissent.
Should the final decision of this ease be delayed a few days longer, *643it wcxxhl appear tlxat some of the majority will have, perhaps, disexxssed in their opinion almost every provision of the Constitution and the amendments. All such discussion is merely obiter in this case, and nothing less.
Justice Birdzell, in his discussion, uses the following language, in his obiter discussion relating to future indebtedness, and we may examine it by further obiter discussion:
“A concrete example may serve to illustrate the fallacy of the argument. If the funds on deposit, public or otherwise, in the Bank of North Dakota seemed to the management to justify it, the bank might purchase $5,000,000 of the bonds of the mill and elevator series. It would still owe to the depositors the amount of deposits thus invested, but the state would’ owe the bank a like sum. Then the bank might borrow $4,000,000 elsewhere, pledging these bonds as collateral, in which event the state, if petitioner’s argument is sound, becomes indebted to the extent of $9,000,000, only $5,000,000 of which is represented by bonds. Then this $4,000,000 could be used to buy more bonds to serve as collateral for another loan, and so on. What, then, has happened to this provision of the Constitution:
“No future indebtedness shall be incurred by the state unless evidenced by a bond issue, which shall be authorized by law for certain purposes ? ”
Our learned justice is confounded in two regards: First, as we view it, in his arithmetic, and, second, as to the matter of indebtedness. It is our view, under § 185 of the Constitution as amended, and chapter 147 of the Laws of 1919, and laws supplementary thereof, that the state,' in its sovereign capacity, is doing a banking business. This is the fact, and, with this fact in mind, we will analyze Justice Birdzell’s “concrete example.”
Now, if the state of North Dakota, in its sovereign capacity, doing business as the Bank of North Dakota, purchases $5,000,000 of the bonds of the mill and elevator series, it has received thereby px*operty just as valuable as the money with which it parted. It did not, in fact axxd in reality, thereby create any indebtedness. The state of North Dakota woxxld owe the depositors the $5,000,000, but it has then in its possession $5,000,000 of assets, the mill and elevator bonds so purchased. Then, supposing the state of North Dakota, doing *644business as the Bank of North Dakota, should, as the concrete example assumes, borrow $4,000,000. It then has received, and again has in its possession $4,000,000, and the party from whom it borrowed that $4,000,000 yet has $1,000 of the state’s property, in the form of bonds, in excess of the $4,000,000 which he loaned to the state. In other words, the stale still- has, and owns, just as much property and money as it invested in the bonds in the first place.
To make the illustration plainer, we will assume that the state should take the $5,000,000 of mill and elevator bonds, which it so purchased, and use them as collateral, and borrow $5,000,000 on them. It would, then, have $5,000,000 in its possession, which would be the same amount it invested in the mill and elevator bonds. How, in all of these transactions, has the state increased its indebtedness?
In all such transactions, or assumptions, it must be assumed and conceded that the bonds so purchased would be of the value of 100 cents on the dollar, so that a thousand dollar bond is equal in value to a thousand dollars in money. In other words, has the state increased its indebtedness by the transaction ? Is there, in fact and reality, any indebtedness, or increase of indebtedness, except as a matter of bookkeeping ?
The bonds assumed to be purchased must be rated at their par value. Otherwise, the state would not purchase them.- If they are worth their face value, would the mere re-exchange again of them, for money, increase the state’s indebtedness ? If there were, in fact and reality, no increase in indebtedness, could the provision of the Constitution referred to be invoked? Would there not have to be an actual, real, and bona fide increased indebtedness, and not a mere bookkeeping indebtedness, before that provision of the Constitution would be set in motion ?
The trouble with arguments such as are contained in Mr. Justice Birdzell’s opinion, in the,regal’d above stated, is the same trouble that occurs in Mr. Justice Bronson’s opinion. They do not seem to concede that the state of North Dakota, under § 185 of the Constitution, is actually engaged, in its sovereign capacity, in the banking business. They do not seem to properly discuss or construe or notice, the part of § 185 of the Constitution as amended, which authorizes the *645state to engage in any industry, enterprise, or business not prohibited by article 20.
But that provision is a part of the Constitution, and equally as important as other provisions of it, and this is a subject we will consider a little later, in connection with what Justice Bronson has to say in his opinion, with reference to § 185 of the Constitution as amended; or rather with what he has not to say in that regard, and our reasoning there will apply to more of Justice Birdzcll’s opinion.
In the majority opinion on rehearing, we find the following:
“The dissenting justice refers to § 185 of the Constitution, which provides that the state may not loan or give its credit in aid of any individual, association, or corporation. The Bank Act, however (§ 15), states that the Bank of Noi*th Dakota may make loans to an individual, association, or private corporation. Is this section of the act unconstitutional because the bank is the state, or rather is it to be said that this agency, as an agency, possesses the function so to make loans ? ”
Certainly, that statement does no justice to the erudition of the learned justice who penned that language. He has forgotten to consider that § 185 as amended authorized the state of North Dakota to engage in industry and enterprise. It is thus authorized to engage in the enterprise of banking, and while engaged in that enterprise, it may, in strict pursuance of the constitutional right secured to it under § 185 as amended, make loans to individuals, associations, or private corporations.
But, if § 185 as amended is erroneously construed, or if not given force nor effect, then the right and authority of the state to loan its credit or money to a private individual, association, or corporation, no longer exists. But if, as we believe, the original majority opinion holds that the Bank of North Dakota, is a private bank, or a private institution, and that is the universal construction placed upon that opinion, how, then, can the majority of this court who signed that opinion justify the state in loaning to their so-called private association or bank or institution, $2,000,000 ? That would be the loaning of the money and credit of the state to a private institution (if the majority opinion is correct, which it is not), in contravention not only of § 185 as amended, but in contravention of it before it was amended. The *646state, in its sovereign capacity doing a banking business, has a constitutional right to loan its credit to private individuals, associations, or corporations, for it is authorized constitutionally to engage in the banking business, by § 185 as amended.
When the state of North Dakota, in its sovereign capacity, doing business as the Bank of North Dakota, loans its money or credit to private individuals, associations, or corporations, it does so in strict accordance with said § 185 of the Constitution as amended. That is its constitutional authority for so doing, and it is done in pursuance of that section of the Constitution.
But, it may be asked, if that be true, what is the meaning of the balance of § 185 as amended, which says:
“But neither the state nor any political subdivision thereof shall otherwise 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 first part of that section is as follows:
“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 Constitution.” (article 20 relates to prohibition.)
Now, are these provisions in any way in conflict? We think not, and we will endeavor, to the best of our ability, to demonstrate that proposition.
When the state itself is engaged in business, it is engaged in it for a public purpose and a public use, and under that section of the Constitution as amended, it is constitutionally authorized to carry on that business, and it is not prohibited from giving its credit, but is authorized by that section of the Constitution to use its credit in carrying on that business.
But, notwithstanding this, it was just as necessary to retain the prohibition in that section against the state giving its credit to any private individual, association, etc., and we will endeavor to illustrate this by an example.
Let us assume that a private corporation was, in this state, organized for the mining and distribution of lignite coal. Let it be as*647sumed that such private corporation applied to the legislature for a loan or an extension of credit for the purpose of carrying on that private business, and that the legislature should, in compliance with that request, make an appropriation of $2,000,000, as a loan to that private corporation. Could the legislature do this? Could it thus give or loan its credit to this private mining corporation? Is it not prohibited by § 185 as amended, and as § 185 was before it was amended, from doing this, and is this not the reason why that provision is retained in § 185 as amended?
It must not be forgotten that the state is engaged in its sovereign capacity, only in a very limited number of businesses, principally these are the state of North Dakota, in its sovereign capacity, doing a banking business, and in that same capacity, doing a mill and eleva-, tor business; and these businesses it is doing for a public purpose and a public use.
But there are hundreds of other different kinds of business carried on in this state by private individuals, associations, corporations, etc., with which the state is in no way interested nor connected, so far as operating them is concerned. It is to prohibit these from applying to the state, through the legislature, to give its credit to them, that it is necessary to retain the prohibition in reference to the state lending its credit to private individuals, associations, or corporations.
It seems quite clear to us that the state of North Dakota, in its sovereign capacity, by § 185 as amended, was constitutionally authorized to engage in industry, enterprise, and business, and that, by that provision of the Constitution, and the laws which we have mentioned in our previous dissent, and other laws supplementary thereof, a few millions of dollars of bonds have been lawfully authorized to issue, for the purpose that the state, in its sovereign capacity, might carry on such businesses.
Great concern is manifested by some, that such bonds have been duly authorized to be issued. They seem to fear that the state will go bankrupt if the sovereign will of the people, approving these industries, is carried out. But we think it was the intention of the sovereign will of the people, by determining to go into these industries, to benefit all the people of this state, and to build up its credit and industries, and to prevent great and irreparable loss annually occurring *648to the wealth-producing people of this state; and we think the taxes which the sovereign people have, by law authorized to provide for the payment of these bonds, would be small in comparison with, some taxes of which we are about to speak, which are not levied by law, but in a way just as effective, so far as depleting the resources of the wealth-producing people of this state.
Let us assume that the legislature, at its session — assuming that it had the power to do SO' — had levied a tax of $200,000,000 on the wealth-producing people of this state for the year 1920, and by wealth-producing we mean principally the agricultural interests of this state, every one would be compelled to admit that such a burden would be seemingly unbearable, but we think it is practically common knowledge that such a burden has been imposed, though not by the legislature, on the faimers of this state in the year 1920.
Let us see. The wheat production of this state for that year was approximately 65,000,000 of bushels. At about harvest time, it was worth approximately $2.65 a bushel. The actual cost in raising that wheat was about $2.50 per bushel. In the fall and winter, when the time had arrived, after the farmer had done his plowing and threshing, for him to haul this wheat to market, it was, on the average, worth approximately about $1.25 a bushel.
In any event, he had lost at least a dollar a bushel. In other words, he was compelled to sell his wheat at a dollar a bushel less than it cost him to raise it. This would be about $65,000,000.
Now, in this state, in additon to wheat, the farmer raises oats, flax, barley, corn, potatoes, hogs, cattle, sheep, and many other articles of production not necessary to mention, all of which had a high market value about harvest time, but the prices of which, later in the fall, began to sink rapidly, until they had reached a very low figure. The loss in this regard may not be capable of definite ascertainment, but we do not think anyone who has any knowledge on those subjects would say the decrease in valuation on those articles, excepting wheat, has been less than a hundred millions of dollars, and perhaps was a great deal more than that amount. And we do not think it is an extravagant statement to say, that the farmer’s loss, by decrease in value of his products, including wheat, an unnecessary and unwarranted decrease, during the fall of 1920, and later was approximately $200,,-*649000,000. This loss was an actual loss, being that much less than it cost him to produce those articles. In other words, the farmers of this state have $200,000,000 less after those articles were produced than it cost them to produce them. This, in the face of the admitted fact, that the demand for those articles was just as great at the time the prices of those articles were so reduced as it was at harvest time, when prices were what they should have been.
Can anyone say that in effect this is not a direct tax on the farmers of this state ? Now, for twenty-five' years or more this situation has existed in this state, and during that time the losses have been annually some greater, or some less, than for the year 1920. That same situation has' been prevailing all over the United States, and, as a result of it, the farmers have been thus indirectly taxed out of the ownership of their farms, so that, to-day, approximately 50 per cent of the tillable land of the United States is occupied by tenants. In other words, that percentage of the farmers no longer own their farms.
In some states the percentage is a little less, and in some a little greater, than the amount above stated; and, as further proof of this, we find in the last census report that the population of the cities exceeds that of the country. In other words, a large percentage of the farmers, under this continual, annual loss of selling their products for less than it cost them, to produce them, have become bankrupt and have moved to the larger cities, hoping there to settle with their families, and there all of them labor in order to gain the sustenance of life.
In order to prevent this loss, which is fast bankrupting the farmers of this state, the people, in their sovereign power, adopted § 185 of the Constitution as amended, and by laws duly passed by the legislature, referended, and again passed by the people, the state, in its sovereign capacity, is peimitted to engage in business.
Our only duty is to construe and interpret those laws, and to try, to the best of our ability, to ascertain the meaning thereof. This, we have done, and we think our interpretation is the correct one.
We are not here going to give any additional extended discussion, with reference to the garnishment proceedings. The contentions which we have made with reference thereto, in our previous dissent, and the conclusions there arrived at in this regard, we think, in the circumstances of this ease, are correct.
*650We conclude this further dissenting opinion by again stating, as we stated in our former dissent, that the real questions involved in this caso 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.
And those questions, and those questions only, are the ones which the writer hereof passes on and decides.