City of Grand Forks v. Grand Forks County

• Decision Date: 30 December 1965
• Docket Number: No. 8177,8177
• Citation: 139 N.W.2d 242
• Parties: CITY OF GRAND FORKS, a municipal corporation, Plaintiff, v. GRAND FORKS COUNTY, a body corporate and politic, Defendant.
• Court: North Dakota Supreme Court

Page 242

139 N.W.2d 242

CITY OF GRAND FORKS, a municipal corporation, Plaintiff, v. GRAND FORKS COUNTY, a body corporate and politic Defendant.

No. 8177.

Supreme Court of North Dakota.

Dec. 30, 1965.

Syllabus by the Court

1. A county treasurer is required by statute to turn over to the treasurer of each city and village within the county 20% of money collected from a property tax on real or personal property situated within the city or village, if levied pursuant to Section 24-05-01, N.D.C.C., for the improvement of highways, or levied for other purposes if appropriated or transferred by the county to its road fund or for expenditures for road and bridge purposes. Section 24-05-01, N.D.C.C.

2. Chapter 32-24, N.D.C.C., providing for the certification of questions of law to the Supreme Court does not contemplate the making of mere advisory opinions to the trial court.

3. Before a certified question may be considered by the Supreme Court, it must be such that the determination of the cause in which it arises will depend wholly or principally upon the construction of law applicable to such question.

4. Chapter 32-24, N.D.C.C., providing for the certification of questions of law to the Supreme Court, requires that the question of law must be clearly stated and must not involve questions of fact, or those of mixed law and fact. It must be distinctly stated so that it can be determined by the Supreme Court without regard to other issues of law or of fact.

5. Tax levied and collected by a county under Section 57-15-06.3, N.D.C.C., without reference to Chapter 382, Session Laws of 1963, may be used by the county only for matching federal aid available for the official road program described therein and is not subject to the provisions of Section 24-05-01, N.D.C.C., nor may such funds be transferred by the county to be used for other purposes.

Gordon Caldis, City Atty., Grand Forks, for plaintiff.

James L. Hansen, Asst. State's Atty., Grand Forks, for defendant.

TEIGEN, Judge (on reassignment).

This is a proceeding under Chapter 32-24, N.D.C.C., involving certification to this court of eight questions of law, some of which are in several parts.

The City of Grand Forks, a municipal corporation, instituted an action against Grand Forks County within which the city is located to recover from the county certain tax moneys collected by the county to which the city maintains it is entitled under the statutes. The county has answered denying liability. Issue was joined and the matter came on for trial in the district court.

In the trial before the district court, the facts were stipulated and it was agreed that the issue will depend principally on the construction of law applicable thereto.

The order certifying questions of law to this court states:

I.

'That Plaintiff is a municipal corporation and is situated in Grand Forks County, State of North Dakota.

II.

That Defendant herein is one of the counties of the State of North Dakota, duly and legally organized, created and established under and by virtue of the laws of the State of North Dakota.

III.

Section 24-05-01 of the North Dakota Century Code provides as follows: 'County road tax--Allocation and use of funds.--In each county of this state having a population of two thousand or more according to the latest United States or state census, there shall be levied and collected a property tax of not less than one-fourth of one mill, nor more than the maximum rate permitted by law, on each dollar of the assessed valuation of all taxable property in the county for the improvement of highways. Of the proceeds of such tax collected on account of real or personal property situated within any city or village, by the county treasurer of the county in which such city or village is located, twenty per cent shall be turned over by such treasurer to the treasurer of such city or village, in the manner provided in section 11-13-06 to be expended under the direction of the governing body of such subdivision in the improvement of the streets and highways thereof. All other proceeds of such tax shall be kept in a distinct fund to be known as the 'county road fund' and shall be expended in the improvement of highways as provided in this chapter under the direction of the board of county commissioners. Such taxes shall be in addition to all other taxes for highway purposes otherwise provided by law. The provisions of this section in regard to allocation shall apply to the proceeds of any tax originally levied for other purposes if appropriated or transferred to the county road fund or for expenditure for road and bridge purposes.'

IV.

'Section 57-15-06.3 of the North Dakota Century Code provides as follows: 'County road program including farm to market and federal aid--Tax Levy.--The board of county commissioners of any county in this state may prepare a proposed county construction program of farm to market and federal aid roads on the county road system, setting forth a general description of the roads to be constructed, the location of bridges constituting a part of the program, the approximate total mileage, and the priority of construction. After approval of such program by the department and the bureau of public roads, the board may submit such program to the electors of the county with the question of levying a tax of not to exceed ten mills upon the net taxable assessed valuation of all property in the county for the completion of such program by matching, from the proceeds of such tax, federal funds available for federal aid, secondary and feeder roads, farm to market roads, and all roads as provided for under Public Law, 769, 81st Congress, or future federal aid highway acts of a similar character. If the majority of the electors voting on the question approved such program and levy, annually thereafter until such program is completed the board shall levy a tax not in excess of ten mills, which levy shall not be subject to the county mill levy limitations, and the proceeds of such tax shall be used only for matching federal aid available for such program which shall be the official county road program.'

V.

'That in conformance to Section 57-15-06.3 of the North Dakota Century Code, the Board of County Commissioners of Grand Forks County, North Dakota on the 24th day of May, 1960, passed a resolution which provided that a proposed 3 mill tax levy against all of the taxable property in said county, to be levied for the purpose of matching Federal funds to build farm-to-market roads, be submitted to the voters of said county for approval or rejection. The full taxt of said resolution, with exception of the specific roads to be improved under such program, is as follows:

'BE IT HEREBY RESOLVED by the Board of Commissioners of GRAND FORKS County, North Dakota, as follows:

'WHEREAS, the Board of County Commissioners of GRAND FORKS COUNTY has prepared a proposed County Construction Program of Farm to Market and Federal Aid Roads, setting forth a general description of the roads to be constructed, the location of the bridges constituting a part of the program, the approximate total mileage and the priority of construction, and;

'NOW, THEREFORE, BE IT RESOLVED that said program be submitted to the electors of GRAND FORKS County, along with the question of levying a tax of not to exceed three (3) mills annually until the program is completed, upon the next taxable assessed valuation of all the property in the County for the completion of said program by matching from the proceeds tax, federal funds available for Federal Aid, secondary and feeder roads, farm to market roads and all roads as provided for under Public Law 769, 81st Congress or future Federal Aid Highway Acts of a similar character, all in conformity with Section 57-1506.3, North Dakota Revised Code of 1943, 1957 Supplement, and;

'BE IT HEREBY FURTHER RESOLVED, that said questions shall be submitted to the electors at a SPECIAL Election to be held June 28, 1960, and that the County Auditor be authorized and instructed to place said questions on the ballot.'

'That a special election was held on such questions on June 28, 1960, and a majority of the electors voting on the question approved such program and levy, annually thereafter until such program is completed. That since such election, said levy has been assessed down to date hereof.

IV.

Section 24-08-08 of the North Dakota Century Code provides as follows: 'The county treasurer of each county wherein any city or municipal corporation shall have constructed a bridge, or hereafter shall construct a bridge, over any navigable stream, shall pay to the treasurer of such city or municipality 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 or municipality.'

VII.

That under Section 24-05-01 of the North Dakota Century Code, Defendant has not paid Plaintiff the full twenty per cent (20%) of the proceeds of such tax collected on real or personal property situated within the City of Grand Forks by the treasurer of the County of Grand Forks, and, further, Defendant has not paid Plaintiff the full twenty per cent of other taxes originally levied for other purposes and appropriated or transferred to the County road fund or expended for road and bridge purposes; that this nonpayment, as far as Plaintiff is concerned, has existed for an unknown number of years in the past and down to the current date, except for certain payments received by Plaintiff from Defendant, including a payment of $20,252.51 received by Plaintiff from Defendant on April 17, 1958.

VIII.

That Defendant has not paid over to the treasurer of the City of Grand Forks any tax monies levied pursuant to Section 57-15-06.3 of North Dakota...