City of Minot v. Amundson

• Decision Date: 08 November 1911
• Citation: 133 N.W. 551,22 N.D. 236
• Court: North Dakota Supreme Court

133 N.W. 551

22 N.D. 236

CITY OF MINOT et al. v. AMUNDSON et al

Supreme Court of North Dakota

November 8, 1911

Appeal from District Court, Ward county; Leighton, J.

Action by the City of Minot and others against Arne Amundson and others, as the Board of County Commissioners of Ward County and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Reversed.

Reversed.

George A. McGee, for appellants.

Dudley L. Nash, for respondents.

OPINION

SPALDING, Ch. J.

The sole question on this appeal is the legality of the board of county commissioners of Ward county, as county commissioners in reducing the assessment for the year 1909 on lots 13, 14 and 15, in block 4, in the city of Minot, from $ 5,460 to $ 3,000, and as a result abating the taxes levied on such real estate in the same proportion. This was done in February, 1911, on petition of the owner to the board of county commissioners, based upon his affidavit to the effect that the assessment of such property was too high, and out of proportion to other property of the same class in the city of Minot.

The board of county commissioners and other defendants demurred to the complaint of the city and certain taxpayers, through which a judgment was sought to nullify and avoid the action of the commissioners, and to enjoin the county treasurer from crediting the taxes on any valuations reduced by the board, upon the grounds stated. The demurer was general, and raises the question of the power of the board of county commissioners, acting as such, and after its adjournment as a board of equalization, to reduce the valuations and abate the taxes on property in a city.

The difficulties arising in the determination of the question involved in this case spring from the apparent conflict between the provisions of § 1553, Rev. Codes 1905, and § 2722, Rev. Codes 1905.

Section 1553 reads as follows: "The board of county commissioners may, upon affidavit or other evidence, when satisfied beyond a doubt as to the illegality or unjustness of the assessment, or in case of error, abate taxes whether real or personal. Full record of such abatement must be made, showing the reason for their action, and the county auditor shall certify such abatement to the county treasurer, who shall enter such facts opposite the tax so abated, which shall have the effect of discharging such tax. And whenever taxes on any real estate remain unpaid and such property has not been sold to any purchaser other than the county, by reason of depreciation in value or other cause, the board of county commissioners may compromise with the owner of such property by abating a portion of such delinquent taxes on payment of the remainder. The county auditor shall also make out a certified statement of the amount of state taxes so abated, which statement shall be forwarded to the state auditor, who shall give the county credit for the amount so abated."

Section 2722 is in the following language: "Within ten days after the completion of the equalization of the assessment as herein provided, the city auditor shall deliver the same to the county auditor of the county in which such city is situated, with his certificate that the same is correct as equalized by said board of equalization, and the same shall be accepted by the board of county commissioners of such county in lieu of all other assessment rolls for said property in said city, and the board of equalization of such county may increase or diminish the valuation therein placed on any class of property, so as to make such valuation uniform with the valuation of the same class of property throughout such county, but no individual assessment shall be otherwise changed; and a failure of any county or city board of equalization to hold its meetings shall not vitiate or invalidate any assessment or tax except as to the excess of valuation, or tax thereon, shown to have been unjustly made or levied."

This court, in First Nat. Bank v. Lewis, 18 N.D. 390, 121 N.W. 836, held that, except as to assessments in unorganized districts or townships, the county board of equalization had no power to change individual assessments, except as a change in the assessment of different kinds of property by class would effect such a change; and that the law regarding equalization by boards of equalization provided a harmonious scheme, to wit, that the township, village, or city board of equalization equalizes as between individuals, the county boards equalize as between classes of property, and the state board equalizes as between counties; and certain sections of the Code were therein passed upon. But this did not determine the powers of the board of county commissioners when not acting as a board of equalization.

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