Angell v. Cass County
| Decision Date | 23 April 1902 |
| Docket Number | 6731 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by Jennie B. Angell against Cass County and another. Judgment for defendants, and plaintiff appeals. Reversed.
Judgment of the trial court reversed, and judgment entered for the plaintiff for the relief demanded in the complaint together with the costs and disbursements.
Newman Spalding & Stambaugh, for appellant.
Statute Chap. 161, Laws 1901, is a general statute and is not a uniform operation. It is a law for the collection of delinquent taxes. Its title declares it to be an act to enforce the payment of taxes. Under § 2 the list filed by the auditor must contain all real estate against which there appears to be any taxes charged for the year 1896 or any prior year or years. Also if any piece shall have been sold to the county at the sale for 1895 or 1896 the list shall include each year's taxes for the years subsequent to 1896, except as to the taxes of 1896 and as to the limitation of the operation of the law to certain counties. The statute is a substantial re-enactment of Chapter 67, Laws 1897. The provisions of the statute are identical with the laws of Minn. 1881, Chap. 35, § 1, and Laws of Minn. 1893, § 1, Chap. 150, construed by the Minn. court. Croswell v. Benton, 54 Minn. 264, 55 N.W. 1125. By these provisions the legislature voluntarily surrenders all title, right or lien which the state had theretofore acquired under tax sales of land bid off for the state or county, whether such sales were valid or invalid. McHenry v. Kidder County, 8 N.D. 418. The statute in question is a general law. The constitution requires that it should be, (§ 176, Const.), and prohibits its special laws for the collection of taxes. § 69, Subd. 23, Const. The statute must have a uniform operation in all parts of the state where are found the objects of the legislation. § 11, Const.; State v. Bargus, 53 Ohio St. 94, 53 Am. St. Rep. 628; Vermont L. & T. Co. v. Whithed, 2 N.D. 93; Duluth Banking Co. v. Koon, 84 N.W. 337. The statute is not a uniform operation because its title limits its operation to those counties wherein proceedings under Ch. 67, Laws 1897, were not instituted, or where such proceedings were defective. Vermont L. & T. Co. v. Whithed, 2 N.D. 94; Duluth Banking Co. v. Koon, 84 N.W. 337; McHenry County v. Kidder County, 8 N.D. 413. Classification by counties is permissible only when it has reference to, is connected with, or affects some function of local county government. Weinman v. Ry. Co., 12 A. 288. The act is broader than its title. The entire subject of legislation is not included in the title, but a portion of it is specifically excluded therefrom. § 61, Const.; Cooley on Constitutional Limitations, 177; Sutherland's Statutory Construction, 87; State v. Nomland, 3 N.D. 432.
Newton & Smith, Morrill & Engerud, for respondents.
Chapter 67, Laws 1897, was not available for more than one effort for its enforcement in the same county. It did not stand to be used at any time at the discretion of the county officials; it was available for a reasonable length of time and not indefinitely. Emmons County v. Lands of First Nat. Bank, 9 N.D. 583, 84 N.W. 379; Cass County v. Security Inv. Co., 7 N.D. 528, 75 N.W. 775. Certain counties proceeded under this act and the proceedings were upheld by this court. Wells County v. McHenry County, 7 N.D. 246; Emmons County v. Lands of First Nat. Bank, 9 N.D. 583. It is not the form but the effect of a statute which determines its special character. Edmonds v. Herbrandson, 2 N.D. 270. A public law of universal interest, embracing all the people of the state or all of a certain class of citizens and not limited to any particular locality is a general and not a special law. Vermont L. & T. Co. v. Whithed, 2 N.D. 82. The constitutional requirement that all laws of a general nature should have a uniform operation is satisfied if the benefits and burdens fall equally upon all members of the class upon which it operates. Vermont L. & T. Co. v. Whithed, 2 N.D. 82. A classification by the legislature must be natural and not artificial. It must stand upon some reason. Edmonds v. Herbrandson, 2 N.D. 270; Plummer v. Borsheim, 8 N.D. 565. Where a general law uniform in its operation is required, this law is none the less general and uniform because it divides the subjects of its operation into classes and applies different rules to the different classes. Nichols v. Walter, 33 N.W. 800. A classification of legislation should be based upon some operation under reasons suggested by necessity. Cobb v. Bord, 42 N.W. 396; State v. Hamre, 42 N.J.L.s, 439; Louisville Ry. Co. v. Wallace, 11 L. R. A. 787. Law are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the laws. People v. Wright, 80 Ill. 388; Hawthorne v. People, 109 Ill. 302; McAunich v. Ry. Co., 20 Ia. 343; Iowa, etc., Co. v. Soper, 31 Ia. 116; Bucklow v. Ry. Co., 64 Ia. 603; Central Trust Co. v. Sloan, 65 Ia. 655; Honore v. Home Nat. Bank, 80 Ill. 489. Chapter 67, Laws 1897, relates only to real property taxes delinquent in the year 1895 and prior years. It waived all right arising to the state or county on account of prior sale or forfeiture, and only retained the right to the tax and its lien upon the property upon which assessed and levied. McHenry County v. Kidder County, 8 N.D. 413. While a statute must stand or fall by its opration, rather than by its mere form, yet, in passing upon the constitutionality of a statute, the court can judge of its operations only through facts of which it can take official notice. The court cannot take testimony to determine the operation of a statute and thereby declare it unconstitutional. State v. Nelson, 26 L. R. A. 317. A classification made by the act in question is upon necessary and constitutional lines; it is of a general nature and has o uniform operation. It is not local or special. State v. Nelson, 26 L. R. A. 317; Sutherland's Statutory Construction, 152, note 3.
J. E. Robinson, for appellant.
Chapter 161, L. 1901, conflicts with the provision in the state constitution that all laws of a general nature shall have a uniform operation and that the legislative assembly shall not pass local or special laws for the assessment or collection of taxes. Vt. L. & T. Co. v. Whithed, 2 N.D. 82; Plummer v. Borsheim, 8 N.D. 565; Edmonds v. Herbrandson, 2 N.D. 27; State v. Nomland, 3 N.D. 427; Divet v. Richland County, 8 N.D. 65; Sutherland's Statutory Construction, § 116-128.
The complaint is this case discloses the following state of facts: In the year 1901 real estate tax judgments were entered in the district court for Cass county against numerous parcels of land in said county, which judgments were entered in a tax proceeding instituted in said court pursuant to the provisions of chapter 161 of the Laws of 1901. This action is brought by a taxpayer of Cass county to enjoin the sheriff of the county from selling said parcels of land to satisfy said tax judgments. The complaint charges in effect that said sheriff, in compliance with the requirements of said chapter 161, has advertised said tracts of land for sale, and threatens to sell the same, and that he will sell the same to satisfy said tax judgments unless he is enjoined from doing so, and that such advertisement and sale, if allowed to proceed, will necessarily involve an unlawful expenditure of public funds, to be taken from the treasury of the county. No question of practice is presented by counsel. To the complaint defendants have interposed a general demurrer for insufficiency. In the trial court the demurrer was sustained, and a judgment was entered dismissing the action, from which judgment the plaintiff has appealed to this court. In this court the constitutional validity of chapter 161 is broadly challenged. Appellant's counsel contend that the statute is a void enactment, in this: that it violates and runs counter to sections 11, 61, 176, and subdivision 23 of section 69, of the state constitution. In reaching a conclusion in the case, we have found it to be unnecessary to consider the validity of the law with respect to either section 61 or section 176 of the state constitution; and we shall, therefore, in discussing the case in this opinion, confine our attention to questions arising under section 11 and subdivision 23 of section 69 of the organic law.
Section 11 is as follows: "All laws of a general nature shall have a uniform application." Section 69 is mandatory upon the legislative assembly, and prohibits that body from passing any special or local law "for the assessment or collection of taxes." Subdivision 23, supra. It will therefor become necessary, in construing chapter 161, to inquire whether the same, which is strictly a law for the collection of taxes, is either a special or a local law. If it is found to be either the one or the other, such finding will dispose of the case, and necessitate a reversal of the judgment, for the obvious reason that the legislature is, in terms, prohibited by the constitution from enacting any such law. On the contrary, if the conclusion is reached that chapter 161 is neither local nor special in character, but is a general law, it will then become necessary to determine whether the enactment meets the constitutional requirement of uniformity.
Proceeding to a consideration of this question, it will be conceded that the act of 1901 is general in its form, and purports on its face to be a general law. The subject-matter of the statute--the collection of unpaid taxes ...
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