We do not believe this philosophy can be adopted in North Dakota in light of § 1-01-06, N.D.C.C., which provides: "In this state there is no common law in any case where the law is declared by the code.", and our long application of this rule. Kaylor v. Iseman Mobile Homes, 369 N.W.2d 101, 103 (N.D. 1985); Wagner Bros., Inc. v. City of Williston, 335 N.W.2d 328, 331 (N.D. 1983); Dorgan v. Kouba, 274 N.W.2d 167, 169 (N.D. 1979); Anderson v. Blixt, 72 N.W.2d 799, 807 (N.D. 1955); Reeves Co. v. Russell, 28 N.D. 265, 148 N.W. 654, 659 (N.D. 1914). Section 1-01-06 was first adopted in 1877, twelve years before our State Constitution, and has gone unaltered since that time.

The City then argues that since the district court's ruling, the North Dakota Supreme Court had occasion to construe the same arbitration contract provisions as found in the contract between the City and Minn-Kota, and reached the opposite conclusion as the district court. In Wagner Bros. v. City of Williston, 335 N.W.2d 328, 330 (N.D. 1983), the North Dakota Supreme Court held that a contractual clause providing "[t]his agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law" referred to the applicable law in North Dakota. Because North Dakota has a statute declaring "[a]n agreement to submit a controversy to arbitration" cannot be specifically enforced, N.D.Rev. Code § 32-04-12(3) (1943), the court held the arbitration clause was not specifically enforceable. If the arbitration agreement in Wagner Bros. had been one involving commerce and therefore governed by federal law, the North Dakota statute rendering arbitration agreements unenforceable no doubt would have been preempted by the Federal Arbitration Act under Southland Corp. v. Keating, 465 U.S. 1 104 S.Ct. 852, 861, 79 L.Ed.2d 1 (1984).

Everkrisp has pointed to no authority in which a court can declare a statute unconscionable, nor has this Court found any. Rather, when a statute is so unfair that to enforce it would be unconscionable, the statute ought to be declared unconstitutional by a court and “the door will be open to legislative efforts to write a valid and fair law.” Wagner Bros., Inc. v. City of Williston, 335 N.W.2d 328, 331 (N.D.1983) (Pederson, J. concurring specially). Everkrisp has not advanced a claim that the statute is unconstitutional and a party must affirmatively raise a constitutional issue.

It is well-established in this state that "there is no common law in any case where the law is declared by the code." § 1-01-06, N.D.C.C. See, e.g., Wagner Bros., Inc. v. City of Williston, 335 N.W.2d 328, 331 n. 3 (N.D. 1983); Dorgan v. Kouba, 274 N.W.2d 167, 169 (N.D. 1978). In Winkler v. Gilmore Tatge Mfg. Co., Inc., 334 N.W.2d 837, 841 (N.D. 1983), we noted that the enactment of Section 28-01.1-07 "was apparently, in part, a response to our denial of attorney fees and costs to sellers defending products liability actions in Conrad."