Davis v. County of Pierce

Decision Date29 December 1922
CourtNorth Dakota Supreme Court

Appeal from the District Court of Pierce County, Burr, J.


Murphy & Toner, for appellant.

The general proposition here has already been settled in favor of the plaintiff under what we claim to be identical conditions and identical statute. Laws 1915, chap. 254; Ry. Co. v Duncan (N.D.) 176 N.W. 992.

The contemporary and subsequent action of the legislature in reference to the subject-matter has been accepted as controlling evidence of the intention of a particular act. Sutherland, Stat. Constr. § 476; Bigelow v Forrest, 9 Wall. 339, 19 L.Ed. 696.

That the legislature has the authority by proper enactment to refund, rebate, wipe out or invalidate taxes already levied is clear. Demorville v. County (Tenn.) 10 S.W. 353; Henry v. Alford, 168 U.S. 651; Auditor Gen. v O'Connor (Mich.) 47 N.W. 443; Files v. Ry. Co. (Ark.) 3 S.W. 817.

"Where the later or revising statute clearly covers the whole subject-matter of antecedent acts, and it plainly appears to have been the intention of the legislature to give expression in it to the whole law on the subject, the latter is held to be repealed by necessary implication." Sutherland, Stat. Constr. subd. 3, § 247.

"A law authorizing counties to issue bonds to the amount of two per cent of the assessed valuation for various purposes, including the construction and repair of roads and bridge was held to be repealed as to the latter purpose by an act prohibiting the issue of such bonds to an amount in excess of one per cent." Murphy v. Comrs. 75 N.W. 951.

"A law authorizing counties to levy a tax for the support of the poor was held to be repealed by a subsequent law authorizing counties to levy not exceeding three mills on the dollar for county purposes the support of the poor being a county purpose." Oregon Short Line v. Standvig (Or.) 37 P. 687.

There is a presumption where acts passed at the same session of the legislature are alleged to conflict, especially where neither has a repealing clause that they were both intended to stand, and will be harmonized if possible; but if they relate to the same subject and are clearly repugnant to each other as they are no such presumption can prevail. White v. Meadville, 177 Pa. 643, 34 L.R.A. 567.

If there is irreconcilable conflict the latter in position prevails. Ex parte Thomas, 21 So. 369; Hand v. Stapleton, 33 So. 689; Van Horn v. State, 64 N.W. 365; Omaha, etc. v. Krogsoow, 66 N.W. 658.

"A statute authorizing the sheriff to bind the county for the support of prisoners was held to be repealed by a law which provided that no county officer, except the board of county commissioners, should contract for the payment or expenditure of any county moneys for any purpose whatever." State v. County Comrs. 37 P. 486; Starbird v. Brown, 84 Me. 238; Pool v. Brown (Mo.) 11 S.E. 743; Pleasant Hill v. Dasher (Mo.) 25 S.W. 566; State v. Butcher (Tenn.) 28 S.W. 296; Felts v. R. Co. (Pa.) 33 A. 97.

Harold B. Nelson (C. C. Converse, on oral argument), for respondent.

"The repeal of statutes by implication is not favored, and where there are two laws upon the same subject they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the later act." Traber v. Railroad Commission (Cal.) 191 P. 366.

"Where two statutes dealing with the same subject-matter are in conflict, so that both cannot be operative, the later act will be regarded as a substitute for the former and will operate as a repeal, although without the repealing clause." State ex rel. v. Public Serv. Commission (Mo.) 204 S.W. 395.

"Though repeals by implication are not favored, when two conflicting statutes prescribe different and inconsistent rules of action about the same thing, the later must prevail." Hurt v. Yazoo etc. Co. (Tenn.) 205 S.W. 437.

"Two acts that are passed at the same session of the legislature are not to be construed as inconsistent, if it is possible to construe them otherwise; but where it is impossible to give effect to both acts the latest in point of time will prevail." People v. Illinois C. R. Co. (Ill.) 129 N.E. 66; Buttorff v. City (Pa.) 110 A. 728; State v. Wetz (N.D.) 168 N.W. 825.

"A special act and the general act relating to the same subject being necessarily inconsistent, the special act is usually regarded as an exception to the former and prevails, though it was enacted before the general act, unless the provisions of the general act necessarily exclude such a construction." Kornegay v. City, 180 N.C. 441, 105 S.E. 187.

"It is a ruling of statutory interpretation that a general act is not to be construed as repealing a particular one." Kreutner v. State (Ala.) 80 So. 125; Koehn v. Public Serv. Commission, 176 N.Y.S. 147; Vertress v. State Bd. (Tenn.) 214 S.W. 737; People v. Chicago, etc. R. Co. (Ill.) 129 N.E. 168; Holle v. Drudge (Ind.) 129 N.E. 229; Van Hess v. Board etc. (Ind.) 129 N.E. 305; State v. Prairie etc. County (Okla.) 167 P. 756; Solomon v. Denver, 12 Colo.App. 179, 55 P. 199; Oneida County v. Evans, 25 Idaho 456, 138 P. 337; Calpin v. Chicago, 249 Ill. 554, 94 N.E. 961; Princeton Coal Min. Co. v. Lawrence, 176 Ind. 469, 95 N.E. 423; Cleveland etc. Ry. Co. v. Blend (Ind.) 105 N.E. 483; Com. v. Huntely, 156 Mass. 236, 30 N.E. 1127, 15 L.R.A. 869; Paul v. Carter, 153 N.C. 25, 68 S.E. 905, 36 L.R.A.(N.S.) 1209; Follensby v. Wilbur, 14 Wash. 242, 44 P. 262.

Manifestly the right of taxation exists in the legislature and can, by it, be delegated as in its wisdom seems proper. 37 Cyc. 966.

The auditor is merely charging a sum, already fixed and ascertained, against the property, the value of which has already been determined, in the manner provided by law, and in which the taxpayer has had full opportunity to be heard. Gray v. Peoria Board of School Inspectors, 82 N.E. 95.




This is an appeal from a judgment in favor of the defendant in an action to recover certain taxes paid under protest. The facts were stipulated and, so far as material, are as follows: The plaintiff at the time of the beginning of the action was the agent of the President in charge of railroads while under Federal control. While under such control taxes were assessed and levied against the property of the Great Northern Railway Company in the county of Pierce in the year 1919 amounting to $ 51,858.78, which taxes were regularly paid the 29th of February 1920, by the United States Railroad Administration. $ 931.97 of this amount was paid under protest and a notice served upon the county treasurer at the time to the effect that this amount represented excess taxes assessed and levied for the county tuition fund for the support of the public schools. It was claimed that the tax was 30 mills in excess of the legal limit of levy for the year 1919 as fixed by certain legislative enactments hereinafter referred to. The tax objected to was levied at the rate of 1 mill on the dollar of the assessed valuation.

A brief statement of the legislation authorizing and limiting the mill tax for the tuition fund may conduce to a more ready understanding of the legal question presented upon this appeal. Section 1224 of the Compiled Laws for 1913 requires the county auditor to extend a tax of 2 mills on the dollar on taxable property in the county to be apportioned among the school districts. In 1915 the legislature passed an act (chapter 254 of the Session Laws for 1915) limiting levies, which this court held, in Great Northern R. Co. v. Duncan, 42 N.D. 346, 176 N.W. 992, to be applicable to the county tuition levy so as to limit the amount that could be raised under § 1224, Compiled Laws of 1913 to the percentage of increase authorized by that chapter, which might be less than the 2 mills permitted by § 1224. In 1919, in the regular session of the legislature, two acts were passed, bearing upon the tax in question. They were both approved on the same day, March 6, 1919. One of them, chapter 214, Session Laws of 1919, reads in part:

"Sec. 1. For the year 1919 and 1920, the total annual amount of the taxes levied for any purpose, except special levies for local improvements and for the maintenance of sinking funds in any county or political subdivision thereof shall not exceed by more than 10 per cent the amount that would be produced by the levy of the maximum rate provided by law upon the assessed valuation of 1919; provided, that for road or school purposes the amount levied may be twenty per cent for 1919 and forty per cent for 1920, respectively, upon the basis of the assessed valuation of 1918."

"Sec. 3. In any case wherein any duty or power is imposed or conferred by law upon any official in any county or political subdivision thereof and such duty or power is contingent upon the assessed valuation of the taxable property in such county or political subdivision, prior to July first, 1921, such duty or power shall rest upon and be conditioned by the assessed valuation of 1918, except as provided in section one hereof."

This act was passed with an emergency clause, declaring it to be in effect from the date of its approval. The other act is chapter 216 of the Session Laws of 1919. It amends § 1224 of the Compiled Laws of 1913 by reducing the mill tax for the tuition fund form 2 mills to 1 mill on the dollar of taxable property. This act was approved on the same day as chapter 214, but contained no emergency clause.

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