City of Mandan v. Nichols

• Decision Date: 09 July 1932
• Docket Number: No. 6864.,6864.
• Citation: 62 N.D. 322,243 N.W. 740
• Parties: CITY OF MANDAN v. NICHOLS, County Auditor, et al.
• Court: North Dakota Supreme Court

62 N.D. 322

243 N.W. 740

CITY OF MANDAN

v.NICHOLS, County Auditor, et al.

No. 6864.

Supreme Court of North Dakota.

July 9, 1932.

Syllabus by the Court.

1. Under section 2165 of the Compiled Laws as amended by chapter 227 of the Laws of 1917, the board of county commissioners may, upon application and affidavit or other evidence, when satisfied beyond a doubt as to the illegality and unjustness of an assessment or in case of error, abate in full or in part taxes, whether real or personal, and such abatement becomes effective when approved by the tax commissioner.

2. There is no conflict between section 2165, Compiled Laws of 1913, as amended by chapter 227 of the Laws of 1917, and section 3646, as amended by chapter 227 of the Laws of 1917.

3. Chapter 227 of the Session Laws of 1917 is entitled “An Act to Amend and Reenact Sections 2165 and 3646 of the Compiled Laws of the State of North Dakota for the year 1913, Relating to Revenue and Taxation.” The subject-matter of both sections relates to revenue and taxation, and is germane to the subject-matter as expressed in the title to chapter 227 of the Session Laws of 1917, and is also germane to the sections which they purport to amend, and the titles of the original acts from which they are taken are broad enough to include both sections in either act.

Appeal from District Court, Morton County; Thos. H. Pugh, Judge.

Action by the City of Mandan against Lee Nichols, Auditor of Morton County, and others. From the judgment rendered, the plaintiff appeals.

Affirmed.

Kelsch & Higgins, of Mandan, for appellant.

Sullivan, Hanley & Sullivan, of Mandan, for respondent Anna J. Stark.

BURKE, J.

This is an action brought by the city of Mandan, N. D., to enjoin the county auditor and county treasurer from acting under an order of the board of county commissioners approved by the tax commissioner, reducing the assessment against the improvements on lot 6 in block 19 in the city of Mandan; the same being the property of the defendant Anna Stark.

It is stipulated that the assessment against the real estate was $1,600 and $1,500 upon the improvements, which assessment was approved by the city board of equalization without protest upon the part of the defendant Anna Stark.

Thereafter the defendant Anna Stark made application to the board of county commissioners for an abatement of said assessment on the ground that the property was not properly classified for assessment purposes, and that the assessment was greater than the true value of the property.

The board of county commissioners of the county, acting upon the application for abatement under section 2165 as amended by chapter 227, Laws of 1917, as a board of county commissioners reduced the assessment on the real estate to $700 and on the improvements to $750, and the state tax commissioner approved the reduction as to the valuation of the improvements but not as to the assessment as against the real estate. The defendant Anna Stark accepted the assessment as approved by the tax commissioner.

[1][2] It is the contention of the appellant that the county commissioners did not have jurisdiction to entertain the defendant's application for an abatement, citing and relying upon First Nat. Bank v. Lewis, 18 N. D. 390, 121 N. W. 836, and City of Minot v. Amundson, 22 N. D. 236, 133 N. W. 551, 552.

In these cases the court was of the opinion that there was a conflict between what is now section 2165, Compiled Laws of 1913, and section 3646, Compiled Laws of 1913. In the Lewis Case, supra, 18 N. D. on page 392, 121 N. W. 836, 837, the court said: “In so far as the latter section confers upon the county board the power of acting on individual assessments is concerned, it conflicts with the other section, but, to the extent that it deals with personal property assessments of individuals who are residents, it is in harmony therewith.”

In the case of City of Minot v. Amundson, supra, the court said: “Section 1553 [now Section 2165 of the Compiled Laws of 1913] * * * relating to revenue and taxation, * * * on its face permits the board of county commissioners to abate real or personal taxes illegally, unjustly, or erroneously assessed. Section 2722 is a part of the chapter relating to cities, but contains a prohibition against the county commissioners changing any individual assessment, other than as such a change may be effected by equalizing classes throughout the county, and requires the board of county commissioners to accept the assessment as equalized by the city board. These provisions as indicated appear to be in direct conflict.”

[3] In 1917 the Legislature, apparently having these decisions in mind, amended and re-enacted sections 2165 and 3646, Compiled Laws of 1913, chapter 227, Laws of 1917. Section 2165, as amended, provides that the application and all records or a certified copy thereof be filed with the tax commissioner, and such abatement and reduction shall also receive the favorable approval of the tax commissioner. To section 3646, as amended and re-enacted, was added thereto: “But no individual assessment shall be otherwise changed” except upon compliance with section 2165 of this Code. Section 2165 gives to the county commissioners power to rebate taxes when sitting as a board of county commissioners. Section 3646 relates to the action of the board of equalization, and it is clear that the amendments were intended to harmonize the two sections and make it clear that the board of county commissioners had authority to entertain at any time an application for the abatement of taxes when sitting as a board of county commissioners, but, when sitting as a board of equalization, they might increase or diminish the valuation placed upon any class of property so as to make all valuations uniform with the valuation of the same class of property throughout the county, but the board of equalization could not change an individual assessment. Its duty and power as an equalizing board is to equalize and raise and lower by class.

In the case of Hughes Electric Co. v. Burleigh County, 53 N. D. 728, 207 N. W. 997, in the decision as expressed in paragraph 3 of the syllabus, which is quoted in appellant's brief: “It is held, the board of county commissioners sitting as a board of equalization has no power to raise or change an individual assessment in a taxing district, having a board of review, where the latter has reviewed and equalized the...