City of Fargo v. Cass County

• Decision Date: 12 December 1979
• Docket Number: No. 9655,9655
• Citation: 286 N.W.2d 494
• Parties: CITY OF FARGO, a municipal corporation, Plaintiff and Appellee, v. CASS COUNTY, a body corporate, Duane E. Hoehn, its Auditor, and Maxine M. Liversage, its Treasurer, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 494

286 N.W.2d 494

CITY OF FARGO, a municipal corporation, Plaintiff and Appellee, v. CASS COUNTY, a body corporate, Duane E. Hoehn, its Auditor and Maxine M. Liversage, its Treasurer, Defendants and Appellants.

Civ. No. 9655.

Supreme Court of North Dakota.

Dec. 12, 1979.

Rehearing Denied Jan. 10, 1980.

Solberg, Stewart & Boulger, Fargo, for plaintiff and appellee; argued by Ward D. Briggs, Fargo.

Ohnstad, Twichell, Breitling, Arntson & Hagen, West Fargo, for defendants and appellants; argued by Duane R. Breitling, West Fargo.

SAND, Justice.

The City of Fargo sought and obtained a writ of mandamus from the district court commanding Cass County to pay to the city auditor of Fargo all the moneys in the bridge fund in the treasury of Cass County, or which may come in to the bridge fund, which may have been or which shall be levied, assessed and collected from persons and property, or either, within the city of Fargo until such time as the city of Fargo's share of the costs of the bridges which are being constructed at First Avenue North and Twelfth Avenue North, or either of said bridges, has been paid in full from such tax and the city's other revenues used to finance such bridge or bridges. The court also set out certain guidelines to be followed by Cass County in carrying out the writ of mandamus. The court relied heavily upon § 24-08-08, North Dakota Century Code, as a basis for granting the writ.

Cass County appealed, contending that § 24-08-08, NDCC, was either impliedly repealed or in the alternative was unconstitutionally vague, or that the court misconstrued the phrase "bridge fund" and the phrase "or is about to be constructed," as found in § 24-08-08.

The facts are not in dispute.

The pertinent findings of fact by the trial court are:

"1. The County of Cass had no distinct fund known as a 'bridge fund' as designated in 24-08-08 NDCC. Neither does Cass County have a specific 'county road fund' as designated in 24-05-01 NDCC. Cass County does have a fund known as 'County Highway Department' which for all purposes is the same as the 'county road fund' and which is used as the basis for the 20% Splitting to the cities under 24-05-01 NDCC.

"2. The 'County Highway Department' fund has, in addition to the mill levy, other sources of revenue commonly referred to as 'jackpot fund' sources including but not limited to the county's share from gasoline taxes, automobile registration, federal and state aid and matching funds, and federal revenue sharing funds. The fund is generated approximately 25% By a direct mill levy and approximately 75% From other given sources. For illustrative purposes only, the county budgeted approximately 1.6 million dollars for such fund, yet only had a mill levy of 3.72 mills generating approximately $380,000.00. Twenty percent of such $380,000.00 would be turned over to the cities pursuant to 24-05-01 NDCC based on the proportionate share of property in that city being taxed. Approximately 60% Of all assessed property in Cass County lies within Fargo.

"3. From the 'County Highway Department' fund, the county operates a road department with permanent employees, road and bridge building equipment, a maintenance building and office. The employees in addition to building and maintaining roads and bridges also are responsible for snow removal. The fund also pays for right of ways for roads. The County Highway Department does road work for townships and the county is reimbursed for such from the townships. For the last year, for an example, the county budget 1978-79 provided for construction and maintenance of approximately $934,000.00, salaries of $570,000.00, new equipment of $150,000.00, office expense of approximately $10,000.00, and right of way of $60,000.00. The 'construction-maintenance' budget item under the 'County Highway Department' fund was budgeted for use for roads and bridges. The county spent, for an example, during the fiscal year 1977-1978 for bridge and work related to bridges including culverts and pipe arches (excluding salary) $183,350.00 on townships roads and $38,525.00 on county roads for a grand total of $221,873.00. If salaries for such bridge work (which is on a separate budget line item) is to be added thereto, the entire cost of bridge repair and construction would be $252,624.00."

The court issued the following Writ of Mandamus:

"For the reasons heretofore given and pursuant to Chapter 32-34 and other applicable statutes of the North Dakota Century Code, Cass County, a body corporate, Duane E. Hoehn, its Auditor and Maxine B. Liversage, its Treasurer, individually and jointly, are hereby ordered by this Writ of Mandamus and commanded to pay to the City Auditor of the City of Fargo all of the monies in the bridge fund of the treasury of Cass County, North Dakota, or which may come into the bridge fund of the treasury of Cass County which may have been or which shall be levied, assessed and collected from persons and property, or either, within the City of Fargo until such time as the City of Fargo's share of costs of the bridges which are being constructed at First Avenue North and Twelfth Avenue North, or either of said bridges, has been paid in full from such tax and the city's other revenues used to finance such bridge or bridges. That this Writ of Mandamus is governed by the following guidelines which are given with more particularity in this opinion:

"1) That the 'bridge fund' is hereby designated as that line item portion of the budget 'construction maintenance' of the budget known as 'County Highway Department'.

"2) That the mill levy for the bridge fund shall be in mathematical proportion as the amount budgeted for such 'construction maintenance' bears to the full amount of the amount budgeted for the County Highway Department.

"3) That the amount turned over to the City Auditor shall be reduced by such amount paid by the county to the city according to Section 24-05-01 NDCC, such reduction being limited to mill levy for the said bridge fund and accordingly not therefor all of the funds collected under Section 24-05-01 NDCC by the city.

"4) That such 'bridge fund' may in future budgets of the county be a designated fund to meet the requirements of Section 24-08-08 NDCC. Such 'bridge fund' shall include any expenses related to construction and repair of bridges and shall include but not necessarily limited to cost and repair of township bridges, cost and repair of county bridges, pipe arches, culverts, bridge engineering, and salaries directly related to bridges.

"5) That such levy, assessment and collection shall be made by the county just as soon as the City of Fargo certifies to the County of Cass that a resolution or motion has been passed authorizing the advertisement for bids for the construction of a bridge or bridges. The County of Cass shall make every effort to include such in its budget for the next following assessment. If such is impossible, the assessment shall be made on the succeeding assessment.

"6) This Writ of Mandamus is applicable to either one or both of such bridges. A certification shall be made for each of said bridges.

"7) Such assessment, levy and collection shall continue year by year until the share of the cost of Fargo shall be paid, taking into consideration and reduced by other sources of revenue the city uses toward financing of such bridge or bridges.

"8) The original certification by the city as to the advertisement for bids shall contain the anticipated cost of the bridge to be derived from the provisions of 24-08-08 NDCC. Each year thereafter the City of Fargo shall certify to the County Auditor the remaining cost of such bridge or bridges to be paid from the provisions of 24-08-08 NDCC. This procedure is to give needed information to the county in making its budget and to prevent overpayment."

In examining the provisions of § 24-08-08, NDCC, it becomes apparent that it is not a self-sufficient law capable of operating on its own but must rely upon some other law to fully implement its provisions. Section 24-08-08 does not grant any powers to the county commissioners. The necessary grant of power, such as levying a tax or creating a bridge fund, obviously rests upon some other law.

To obtain the full and true meaning of the provisions of § 24-08-08, it is imperative that the background under which it was enacted be examined to determine if any pari materia laws existed at that time which will help in determining its true and full significance. With this in mind, we have reviewed and researched the various enactments which may have a bearing on the resolution of the issue under consideration particularly as to the interpretation and construction or validity of § 24-08-08, NDCC, as it now provides.

"24-08-08. Bridge funds to be turned over to city. The county treasurer of each county wherein any city shall have constructed a bridge, or hereafter shall construct a bridge, over any navigable stream, shall pay to the auditor of such city whereby such bridge has been constructed or is about to be constructed, all money in the county treasury or which may come into the county treasury In the bridge fund of such county, which may have been or which shall be levied, assessed, and collected from persons and property, or either, in said city." (Underscoring ours.)

Section 24-08-08 was enacted by Ch. 39 of the 1890 Sessions Laws, at which time a territorial law, Ch. 28, § 33 of the 1877 Code, was still in effect. It was found under the heading "Rate of Taxation and Levy of Same" and contained the headnote "Territorial, County and Special Taxes Limited," and provided:

"The rate of the general territorial tax shall not be less than one-half mill, nor more than five mills on the dollar valuation; for ordinary county revenue, including the support of the poor, not more than four mills on the dollar; for roads and bridges, a poll tax of one dollar and a half, or one day's work, on every male...