Appeal of Johnson, 8567

Decision Date15 January 1970
Docket NumberNo. 8567,8567
Citation173 N.W.2d 475
PartiesAppeal of Sander JOHNSON from the Decision of the Board of County Commissioners of Grand Forks County, North Dakota, Denying Application for Abatement of Real Estate Taxes. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. For reasons stated in the opinion, it is held that the appellant (the respondent on appeal to this court) complied with N.D.C.C. §§ 11--11--41 and 11--11--42, relating to the taking of an appeal from a decision of a board of county commissioners, the service of notices of appeal, and the filing of a notice of appeal with the clerk of the district court.

2. Under N.D.C.C. ch. 11--11, neither a summons nor a complaint is necessary to effect an appeal from a decision of a board of county commissioners denying an application for an abatement or a refund of taxes.

3. In an appeal from a decision of a board of county commissioners denying an application for a refund of taxes sought under N.D.C.C. ch. 57--23, the decision of the Board of county commissioners confirming the action of the governing body of a city and its city assessor as to the appraised value of property for tax-assessment purposes, a court should not substitute its judgment as to the valuation of the property for that of the duly constituted taxing authorities; and thus, unless it is shown that the commission acted arbitrarily or oppressively or unreasonably, or that there is not substantial evidence to support the decision, the decision should not be disturbed.

Caldis & Arneson, Grand Forks, for appellant, City of Grand Forks.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for respondent, Sander Johnson.

John A. Alphson, State's Atty., Grand Forks, for Board of County Commissioners of Grand Forks County.

Joseph R. Maichel, Asst. Atty. Gen., Bismarck, for State Tax Commissioner.

ERICKSTAD, Judge.

The City of Grand Forks appeals from a judgment of the District Court of Grand Forks County, the Honorable A. C. Bakken, Judge, dated December 30, 1968, which refunded $240.90 of the real estate taxes paid by Mr. Sander Johnson for the year 1965. The judgment also included $37.11 in interest and $145.80 in costs and disbursements.

This case arises from an application made by Mr. Johnson on April 14, 1966, entitled 'Application for Abatement and Settlement of Taxes,' in which it was asserted that taxes which he had paid for 1965 on Lot 16 in Block 31 of the Original Townsite of Grand Forks were excessive, and in which he demanded a refund. On August 16, 1966, the governing board of the City of Grand Forks recommended that the application be denied, and on August 26, 1966, the Board of County Commissioners of Grand Forks County denied it. On September 19, 1966, Mr. Johnson appealed to the District Court from the decision of the Board of County Commissioners. Thereafter the County moved that the City of Grand Forks be made a party to the action, asserting that the motion was made under N.D.R.Civ.P. 19(b) so that complete relief could be accorded the parties. This motion was denied by Judge Bakken on January 16, 1968. On May 17, 1968, the City moved to intervene, asserting that under N.D.R.Civ.P. 24(a) it had a right to be made a party to the action. By order dated May 29, 1968, the Honorable Harold M. Hager, District Judge, granted the City permission to intervene.

Simultaneously with its motion to intervene, the City moved to dismiss the appeal on the ground that the court lacked jurisdiction, asserting that no justiciable controversy had been presented to the court. By order dated June 13, 1968, Judge Bakken denied the motion to dismiss. On November 6, 1968, after due hearing upon the appeal from the decision of the Board of County Commissioners, Judge Bakken entered his findings of fact, conclusions of law, and order for judgment. The findings most pertinent to this appeal are contained in paragraphs 7 through 10 and read as follows:

7.

FOUND that the above entitled property was taxed by the County of Grand Forks for the calendar year 1965, and that for said year the values as ascribed to said land by the city assessor of the City of Grand Forks, which form the basis for the assessment of the tax for said year, were as follows:

Appraised value $86,850.00

Assessed value (27%

of appraised value) 23,460.00

Taxable value (50%

of assessed value) 11,730.00

8.

FOUND that the appraised value of $86,850.00 on said land was not at said time and is not the full and true value of said property as provided by law, specifically Section 57--02--27 of the North Dakota Century Code.

9.

FOUND that the true and full value in money of the above described property, on April 1, 1965, for which taxes for the year 1965 should have been levied are as follows:

Appraised value $76,910.00

Assessed value (27%

of appraised value) 20,765.70

Taxable value (50%

of assessed value) 10,382.85

10.

FOUND that before the tax year of 1965 there was assessed against the above described property as real estate taxed, the sum of $2,097.56, plus special assessments of $408.94, or a total tax and assessment of $2,506.50.

On those findings the court concluded that the proper tax upon the property for the year 1965 was $1,856.66, and thus that Mr. Johnson was entitled to a refund of $240.90. It is from the judgment entered on the aforesaid findings of fact, conclusions of law, and order for judgment that the City now appeals.

Although demanding a trial de novo, the City has asserted five specifications of error. In its brief, and orally before this court, it has grouped the specifications for purposes of argument. We shall discuss them in the manner and in the order in which they have been briefed and argued to us.

Specifications 1 and 2 are grouped together. They read:

1. The court erred in its denial of intervening party respondent's Motion to Dismiss, said motion being made on jurisdictional grounds and the lack of presentation of a justiciable controversy, and said motion being denied by that Order of the court dated June 13, 1968.

2. The court erred in its finding that procedural steps taken by Sander Johnson in the prosecution of his appeal to the District Court were in accordance with the law and that the court had jurisdiction of the subject matter.

N.D.C.C. § 11--11--41 provides for the time within which an appeal must be taken from a decision of a board of county commissioners, for the notice which must be given to a member of the board of county commissioners and to the State Tax Commissioner, and for a transcript of the proceedings:

11--11--41. Time for appeal--Notice--Transcript of proceedings.--An appeal from a decision of the board of county commissioners must be taken within thirty days after the decision of the board by serving a written notice of appeal upon one member of the board. If the decision from which an appeal is taken relates to tax refunds, tax abatements, or other matters relating to taxation, a notice of appeal also shall be served by registered or certified mail upon the state tax commissioner. The county auditor, upon the filing of the undertaking, shall make out a complete transcript of the proceedings of the board relating to the matter in controversy, and shall deliver the same to the clerk of the district court.

North Dakota Century Code.

The City does not contend that the provisions of § 11--11--41 have not been complied with; however, it does assert that the requirements of § 11--11--42 have not been met. That section reads:

11--11--42. When appeal filed--When tried.--An appeal from a decision of a board of county commissioners shall be filed on or before the first day of the term of the district court following the taking of the appeal, and the cause shall stand for trial at such term.

North Dakota Century Code.

It is apparently the City's position that, although Mr. Johnson appealed from the decision of the Board of County Commissioners within thirty days after its rendition, he did not file his notice of appeal on or before the first day of the term of the District Court following the taking of the appeal.

On the record before us we cannot determine what date may have been the first day of the term in 1966 following the Board's decision, but we do note that the original notice of appeal carries the stamp of the Clerk of the District Court of Grand Forks County, stating that it was filed in that office on September 20, 1966. Assuming, for the sake of argument, that September 20 may have been after the first day of the term of the district court following the date of the decision of the Board of County Commissioners, we are nevertheless of the opinion that the appeal was not defective, it having been served and filed within thirty days of that decision. Any other construction would read confusion into the statutes. (We refer readers interested in applications for abatement or refund after July 1, 1969, to § 1, ch. 491 of the 1969 session laws, or N.D.C.C. § 57--23--08.)

The second assertion in support of Specifications 1 and 2 is that because Mr. Johnson did not commence his action by the service of a summons, he has failed to comply with N.D.R.Civ.P. 3 and, in light of Rule 81(a, b), the District Court had no jurisdiction to entertain the case.

Rules 3 and 81(a, b) follow:

RULE 3. COMMENCEMENT OF ACTION

A civil action is commenced by the service of a summons.

RULE 81. APPLICABILITY; IN GENERAL

(a) Special Statutory Proceedings. The statutory proceedings listed in Table A are excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules.

(b) Appeals to District Courts. These rules do not supersede the provisions of statutes relating to appeals to or review by the district courts, but shall govern procedure and practice relating thereto insofar as these rules are not inconsistent with such statutes.

North Dakota Rules of Civil Procedure.

Inasmuch as Rule 81(b) specifically provides that...

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