It is fundamental to the adversary process that each party be afforded an opportunity to bring up its "heavy artillery" in defense of or attack upon an issue, especially if the issue is of a constitutional nature. See So. Valley Grain Dealers v. Bd. of Cty. Com'rs, 257 N.W.2d 425 (N.D. 1977). More importantly, however, is the danger of usurping the district court's function in the judicial process.
The legislature may delegate power to an executive agency; it is forbidden only from delegating the entire power to legislate. Southern Valley Grain Dealers v. Board of County Comm'rs, 257 N.W.2d 425, 434 (N.D. 1977). In Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405, the Poultry Improvement Act authorized the Poultry Improvement Board to reduce legislatively established license fees, if the Board found the fees to be excessive.
"[A]n act of the legislature is presumed to be correct and valid, and any doubt as to its constitutionality must, where possible, be resolved in favor of its validity." So. Valley Grain Dealers v. Board of County Commissioners, 257 N.W.2d 425, 434 (N.D. 1977); N.D.C.C. § 1-02-38. Section 39-12-17 provides that a court must assess charges on a pro rata basis against a vehicle that has violated highway weight limitations.
" 188 N.W.2d at 407 (Syllabus by the Court). In Southern Valley Grain Dealers v. Bd. of Cty. Comr's, 257 N.W.2d 425 (N.D. 1977), this Court upheld the constitutionality of a statute authorizing the State Board of Equalization or appropriate boards of city or county commissioners to grant a five-year tax exemption to new industries pursuant to Chapter 40-57.1, N.D.C.C. Sections 40-57.1-01 and 40-57.
It is fundamental to the adversary process that each party be afforded an opportunity to bring up its "heavy artillery" in defense of or attack upon an issue, especially if the issue is of a constitutional nature. See So. Valley Grain Dealers v. Bd. of Cty. Com'rs, 257 N.W.2d 425 (N.D. 1977). More importantly, however, is the danger of usurping the district court's function in the judicial process. By deciding an issue not previously raised, we infringe upon the opportunity of the district court to consider the question as the court of first instance.
We are satisfied that § 12.1-32-09, NDCC, as we have construed it, does not violate Ternes' rights to due process by providing vague penalties or by allowing the prosecutor to make legislative decisions. So. Valley Grain Dealers v. Bd. of Cty. Com'rs, 257 N.W.2d 425, 434 (N.D. 1977). We are also satisfied that the statute, as construed, does not in other ways violate Ternes' right to equal protection. "One who attacks a statute on constitutional grounds, defended as that statute is by a strong presumption of constitutionality, should bring up his heavy artillery or forego the attack entirely."
[¶30] This Court has upheld delegations of power when the law contains reasonable guidelines for how the delegated power is to be implemented. Kelsh, 2002 ND 53, ¶ 21 (citing MCI Telecomms. Corp. v. Heitkamp, 523 N.W.2d 548, 555 (N.D. 1994); N.D. Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 285-86 (N.D. 1990); S. Valley Grain Dealers Ass'n v. Bd. of Cty. Comm'rs, 257 N.W.2d 425, 435 (N.D. 1977)). "When reasonable guidelines are given, the delegated power to ascertain facts for operation of a law is not unconstitutional because that power pertains to execution of the law."
[¶8] "[A]n Act of the legislature is presumed to be correct and valid, and any doubt as to its constitutionality must, where possible, be resolved in favor of its validity." S. Valley Grain Dealers Ass’n v. Bd. of Cty. Comm’rs , 257 N.W.2d 425, 434 (N.D. 1977). "A statute enjoys a conclusive presumption of constitutionality unless it is clearly shown that it contravenes the state or federal constitution." Richter v. Jones , 378 N.W.2d 209, 211 (N.D. 1985).
Indeed, "One who attacks a statute on constitutional grounds, defended as that statute is by a strong presumption of constitutionality, should bring up his heavy artillery or forego the attack entirely."Southern Valley Grain Dealers Ass'n v. Bd. of Cty. Comm'rs of Richland Cty., 257 N.W.2d 425, 434 (N.D. 1977). The unions sought and received a preliminary injunction based upon their constitutional attack upon Senate Bill 1. For many decades, West Virginia courts have applied the following guide when granting or refusing an injunction:
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). Southern Valley Grain Dealers Ass'n v. Bd. of Cty. Comm'rs of Richland Cty., 257 N.W.2d 425, 434 (N.D. 1977). The unions sought and received a preliminary injunction based upon their constitutional attack upon Senate Bill 1. For many decades, West Virginia courts have applied the following guide when granting or refusing an injunction: