Dawson v. Tobin

Decision Date22 October 1946
Docket Number7031.
Citation24 N.W.2d 737,74 N.D. 713
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. The sole object sought in construing a constitutional provision is to ascertain and give effect to the intention and purpose of the framers and of the people who adopted it and all rules of construction are subservient to, and intended to effectuate, such object. Primarily, such intention and purpose are to be found in and deduced from the language of the constitution itself.

2. At the general election in November, 1918 certain constitutional amendments relating to the initiative and referendum were approved and thereafter became part of the constitution. Such amendments provided: 'The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives. The people, however, reserve the power first to propose measures and to enact or reject the same at the polls; second to approve or reject at the polls any measure or any item or parts of any measure enacted by the legislature.' They further provided that the legislative assembly by a declaration set forth therein might declare an act of the legislature to be an emergency measure; and that if such measure were passed by a vote of two-thirds of the members present and voting in each house, such emergency measure should take effect and be in force from and after its passage and approval by the Governor. They further provided that if a referendum petition is filed against an emergency measure that 'such measure shall be a law until voted upon by the electors. And if it is then rejected by a majority of the votes cast thereon, it shall be thereby repealed.' Such amendments further provided: 'This section shall be self-executing and all of its provisions treated as mandatory. Laws may be enacted to facilitate its operation but no laws shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people.'

For reasons stated in the opinion it is held:

(a) That such constitutional amendments superseded the former provisions of the constitution relating to the initiative and referendum, and that all statutes in existence when such amendments became part of the constitution, which in any manner conflicted with such amendments, limited the scope of the powers therein reserved to the people, or interfered with the exercise or lessened the efficacy of such powers, were rendered inoperative and inapplicable to the initiative and referendum.

(b) The effect of the initiative and referendum provisions of the constitution is to make the lawmaking power of the legislature not final but subject to the will of the people and to reserve that power in the people themselves.

(c) The constitutional amendments relating to the initiative and referendum constitute both the source and the measure of the powers therein reserved to the people.

(d) The power of the people to reject laws under the power of the referendum is as broad as the power of the legislature to enact laws. The power of the referendum extends to every measure enacted by the legislature, including emergency measures, and to every section and part of any legislative measure.

(e) An emergency measure takes effect as a law upon its approval by the Governor, but such measure is subject to the power of the referendum, and if an emergency measure is rejected at a referendum election and 'thereby repealed,' the measure, including every part and provision thereof, is annulled and destroyed and ceases to have any effect from and after the time the rejection of the measure at the referendum election takes effect.

(f) Section 1-0216, N.D.R.C.1943, which provides that 'whenever any act of the legislative assembly which repealed a former law is repealed, such former act shall not be revived by such repeal, unless there is express provision to the contrary,' has no application to the 'repeal' of an emergency measure resulting from the rejection of such measure at a referendum election. Said section was intended to apply and applies only to the repeal of a law by another law.

(g) When an emergency measure, which amended and re-enacted a former law and repealed all provisions in conflict with such emergency measure, is rejected at a referendum election, such rejection completely recalls and nullifies such emergency measure from the time the rejection of the measure at the referendum election takes effect, and revives the law repealed by such emergency measure.

Nilles Oehlert & Nilles, and H. C. Young, all of Fargo, for appellant.

Nels G. Johnson, Atty. Gen., P. O. Sathre, I. A. Acker, C. E. Brace, and Richard P. Rausch, Asst. Attys. Gen., C. F. Kelsch, Sp. Asst. Atty. Gen., and R. F. Gallagher, State's Atty., of Mandan, for respondents.

CHRISTIANSON, Chief Justice.

Plaintiff brought this action for a declaratory judgment pursuant to the provisions of Sections 32-2301 to 32-2313, North Dakota Revised Code of 1943. The defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff has appealed.

It is alleged in the complaint that the plaintiff is a citizen and an elector of the state and a resident and taxpayer of Morton County in this state; that he is the owner of a substantial amount of real and personal property in Morton County in this state subject to taxation; that he brings this action in his own behalf and in behalf of all taxpayers similarly situated. The defendant Tobin is the duly elected, qualified, and acting county auditor of Morton County, and the defendant Tavis is the duly elected, qualified, and acting county treasurer of such county, and the defendant Johnson is the duly elected, qualified, and acting attorney general of the State of North Dakota.

The question in controversy is whether in computing the general property tax, property shall be valued in accordance with Section 57-0228 of the North Dakota Revised Code of 1943 which provides:

'The value of all property subject to a general property tax, not exempted by law nor subject to any gross sales or other lieu tax, to be used in the computation of the tax levied, shall be fifty percent of the full and true value thereof. Assessors and boards of review shall assess and return all taxable property at its full and true value, and the county auditor, after equalization by the state board of equalization, shall make the computations necessary to reduce the assessed value to said fifty percent.'

The controversy here arises as a result of the enactment by the legislative assembly of Chapter 317, Laws 1945, amending and re-enacting the above quoted Section 57-0228, N.D.R.C. 1943, and repealing all acts and parts of acts in conflict with said Chapter 317, and the subsequent rejection of said Chapter 317 by the people at a referendum election.

It is alleged in the complaint that the defendant Attorney General in the performance of his duties rendered an opinion that the above quoted Section 57-0228 has been repealed and is no longer in force; and that instead of using 50 percent of the full and true value of the property as the basis in the computation of taxes as provided by said Section 57-0228, it is the duty of the County Auditor to use as a basis for such computation 100 percent of the full and true value of the property. It is further alleged that unless enjoined from so doing, or unless it is determined by judgment of the court that said Section 57-0228, N.D.R.C. 1943, is in force and applicable in the computation of taxes, the defendant County Auditor will compute and spread taxes computed on the basis of 100 percent of the full and true assessed value of the property and the defendant County Treasurer will collect the taxes as so computed and spread.

The Twenty-eighth Legislative Assembly which convened in January, 1945, enacted Chapter 317, Laws 1945, which read as follows:

'An Act Amending and re-enacting Section 57-0228 of the North Dakota Revised Code of 1943 relating to basis of assessment of property for taxation purposes, raising such basis from fifty percent to seventy-five percent of the full and true value of such property; repealing all acts and parts of acts in conflict herewith; and declaring an emergency.

'Be It Enacted by the Legislative Assembly of the State of North Dakota:

'§ 1. That Section 57-0228 of the North Dakota Revised Code of 1943 be amended and re-enacted to read as follows: The value of all property subject to a general property tax, not exempted by law nor subject to any gross sales or other lieu tax to be used in the computation of the tax levied, shall be seventy-five percent of the full and true value thereof. Assessors and boards of review shall assess and return all taxable property at its full and true value, and the county auditor, after equalization by the state board of equalization, shall make the computations necessary to reduce the assessed value to said seventy-five percent.

'§ 2. All acts and parts of acts in conflict herewith are hereby repealed.

'§ 3. This act is hereby declared to be an emergency act and shall be in full force and effect from and after its passage and approval.'

It will be noted that the only change made by said Chapter 317, Laws 1945 in the former law was to increase the percentage of the full and true value of taxable property to be used as a basis in the computation of the tax thereon from 50 percent to 75 percent.

Said Chapter 317 was enacted by a vote of two-thirds of the members present and voting in each house, and hence took effect and was in force from and after its passage and approval by the Governor. N.D.Const., Sec. 67...

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