City of Fargo v. Ross
| Decision Date | 10 December 1902 |
| Docket Number | 6731 |
| Citation | 92 N.W. 449,11 N.D. 369 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by the city of Fargo against D. C. Ross, as treasurer of Cass county. Judgment for plaintiff, and defendant appeals. Reversed.
Reversed.
Newton & Smith and George W. Newton, for appellant.
M. A Hildreth, for respondent.
On the 4th day of February, 1902, an alternative writ of mandamus was issued by the district court of Cass county, directed to the defendant, the treasurer of said county, and commanding him to pay over to the city treasurer of the city of Fargo all interest and penalties collected on city taxes since July 1, 1901, or to show cause why he had not done so. The writ was based upon an affidavit of H. F. Miller, the city attorney of said city, in which it is alleged that there is a large sum of money in the hands of the defendant, belonging to the city of Fargo, which the defendant neglects and refuses to account for or turn over to C. H. Mitchell, the treasurer of said city, and the legal and proper person to whom such money should be paid under the law that said city, through its said treasurer, C. H. Mitchell, has demanded of the defendant the payment to him, as such treasurer, of all interest and penalty collected on city taxes after the 1st day of July, 1901, "and that he made such demand in pursuance of and in conformity to section 2496 of the Revised Codes of this state, as amended at the last session of the legislature, which said amendment was approved March 7, 1901"; that in reply to said demand the defendant refused to account for or turn over to the said C. H. Mitchell the penalty and interest collected on city taxes since July 1, 1901. The demand of the city treasurer and refusal of the county treasurer are in writing, and are attached to the affidavit. The demand of the city is for "all interest and penalty collected on city taxes since the 1st day of July, 1901," and the written demand stated that it is made under section 2496, Rev. Codes, as amended in 1901. The county treasurer, acting on the advice of the county attorney, refused to comply with such demand, and in writing declined "to turn over any money collected from any interest and penalty accrued on taxes other than penalties on specials which has been turned over to the city at each monthly settlement." Upon the return day, the defendant interposed a demurrer upon the ground that the facts set forth did not constitute a cause of action, or show that the defendant is entitled to the relief asked, or any other relief. The demurrer was overruled by the trial court, and judgment entered directing the issuance of a peremptory writ of mandamus requiring the defendant to turn over to the city treasurer all the interest and penalty collected on city taxes since the 1st day of July, 1901. The defendant filed an undertaking to stay execution of the judgment, and appealed from the judgment.
The question presented is whether the city or the county is entitled to the interest and penalties collected upon city taxes since July 1, 1901, and it is agreed that this question turns entirely upon the effect to be given to the amendatory act (chapter 149, Laws 1901), which went into effect on July 1, 1901. If that act operated to repeal sections 2496 and 1260, Rev. Codes 1899, it is agreed that the interest and penalty belongs to the city; otherwise not. Section 2496 was enacted as a part of chapter 102, Laws 1897, and reads as follows: "The county treasurer of such county shall thereupon collect such taxes, together with the interest and penalty thereon, if any, in the same manner as the general taxes for that year, and shall pay over to the city treasurer of such city all sums so collected as fast as collected, and shall take the city treasurer's voucher therefor; and the county treasurer shall retain from the moneys collected for each city, as a fee to be turned over to the county, one per cent. of the amount so collected." Section 1260 was enacted as chapter 4, Laws 1899, and is as follows: "All penalty and interest collected on taxes shall belong to the county and become a part of the general fund, or such other fund as the county commissioners may direct; except the penalty and interest collected on special assessments due to cities, and all such penalties and interest shall be paid to the city thereunto entitled." In 1901, section 2496, supra, was amended by chapter 149, Laws 1901, which is entitled "An act to amend section 2496 of the Revised Codes of 1899, relating to the duty of county treasurer in the collection of city taxes," and reads as follows: It will be seen that section 2496, first above quoted, as it originally stood, and prior to its modification by section 1260, supra, required that all sums collected by county treasurers, including interest and penalties, should be turned over to the city, except the 1 per cent. commission of the county treasurer. It will also be noted that section 2496 was modified by Laws 1899, c. 4, § 1260, supra, which latter section gave the interest and penalties on all taxes to the county, except on special assessments, and provided that interest and penalty on special assessments was to be turned over to the city. This was the condition of the law when the amendatory act (chapter 149, Laws 1901) took effect upon the 1st day of July, 1901; in other words, counties were entitled to interest and penalties, except upon special assessments.
It is conceded that this case turns upon the effect to be given to this amendatory statute, and that, independent of it, the city had no claim against the county. It is the county's contention that the amendatory act had no further or other effect that to repeal and abrogate that part of section 2496 supra, relating to the county treasurer's commission, which was omitted in the amendatory act; which omitted part, for convenience of reference, we have italicized. The respondent's counsel contend, on the other hand, that section 2496 was wholly repealed by the amendatory act, and that section 1260 was repealed by implication to the extent that it conflicts with section 2496, as amended. As an indisputable conclusion from these assumptions, counsel for the city contends that the right of the city to interest and penalties is to be measured by the amendatory act entirely, and without regard to any other or pre-existing provisions, and that in this view the city is entitled not only to the interest and penalties upon special assessments, but also to interest and penalties upon all city taxes. The trial court agreed with this contention, and, in effect, held that both sections 2496 and 1260, supra, were repealed by the amendatory act (chapter 149, Laws 1901), and that the right of the city is governed by the last-named act. We are unable to agree with this conclusion, and for reasons which to us appear entirely convincing. In the first place, chapter 149, Laws 1901, contained no express repeal, either of section 1260 or section 2496. On the contrary, section 2496 was merely amended by it, and it was amended not by introducing any new provisions, or provisions repugnant to the provisions of said section or to section 1260. The section, as amended, merely omits the provision relating to the...
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