Douglas v. City of Fargo
| Decision Date | 26 November 1904 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Flora R. Douglas against the City of Fargo and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
Morrill & Engerud, W. B. Douglas, Newman, Spalding & Stambaugh, and A. B. Lee, for appellant.
Until the assessment has the sanction of the assessor's oath it has no validity, and cannot form the basis of taxation, or said to be finally completed. People v. Suffern, 68 N.Y. 321; Brevoort v. City of Brooklyn, 89 N.Y. 133; Van Rensselaer v. Witbeck, 7 N.Y. 517; Westfall v. Preston, 49 N.Y. 349; Bradley v. Ward, 58 N.Y. 401; Bellinger v. Gray, 51 N.Y. 610; Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188; Marsh v Supervisors of Clark Co., 42 Wis. 502.
Such complete assessment roll is the only evidence of the assessor's acts and intentions. Eaton v. Bennett, supra; People v. San Francisco Savings Union, 31 Cal. 132; People v. Hastings, 34 Cal. 571; Marsh v Supervisors of Clark Co., 42 Wis. 502; Lee v. Crawford 10 N.D. 482, 88 N.W. 97.
Attaching such oath is mandatory. Eaton v. Bennett, supra; Cooley on Taxation, sections 412-413; Brevoort v. City of Brooklyn, 89 N.Y. 128.
All property * * * shall be assessed * * * in the manner prescribed by law. Const. N.D. section 179; Hertzler v Cass County, 12 N.D. 187, 96 N.W. 294.
An assessment is a judicial requirement, the ground work of all subsequent proceedings. Without it no taxing officer could proceed. The legislature cannot dispense with it, and these matters are constitutional. Its absence is not a mere irregularity nor can the legislature control, excuse or cure it. Roberts v. First National Bank, 8 N.D. 504, 79 N.W. 1049; Bank v. Chestnut, 14 Ill. 223; Albany City v. Maher, 20 Blach. 341; Evans v. Fall River Co., 9 S.D. 130, 68 N.W. 195; 2 Desty on Taxation, p 619; Cooley on Taxation, 304; People v. Holliday, 25 Cal. 301; Schumacher v. Toberman, 56 Cal. 508; Taylor v. Palmer, 31 Cal. 241; People v. Lynch, 51 Cal. 15; Stewart v. Shoenfelt, 13 Serg. & R. 350; McReynolds v. Longenberger, 57 Pa. 13; Hodgson v. Burleigh, 4 F. 111.
Tax laws must be strictly construed. Sharp v. Spear, 4 Hill, 76.
When the manner of doing an act is prescribed, it must be done in that mode. Sutherland on Const. Construction, section 326, note 1 and cases; 1 Desty on Taxation, p. 516, note 14; Painter v. Hall, 75 Ind. 209.
All obligations of a city in excess of the debt limit are void. Lake County v. Rollins, 130 U.S. 662, 9 S.Ct. 651; Township of Doon v. Cummins, 142 U.S. 336, 12 S.Ct. 220; Birkholz v. Dinnie, 6 N.D. 511, 72 N.W. 931.
Failure to enter yeas and nays on propositions to create liability against the city render the action void. Section 2143, Rev. Codes 1895; Shattuck v. Smith, 6 N.D. 56, 69 N.W. 5.
No power to assess or levy taxes can be delegated. Const. N.D., section 178; Reelfoot Levee District v. Dawson, 34 L. R. A. 725; Cooley on Taxation, p. 51; Cooley's Const. Lim., pp. 248, 249.
Retaining fruits of prohibited contracts does not subject the corporation to liability. Engstad v. Dinnie, 8 N.D. 1, 76 N.W. 292; Goose River Bank v. Willow Lake School Twp., 1 N.D. 26, 44 N.W. 1002; Tennant v. Crocker, 48 N.W. 577; Bladen v. Philadelphia, 60 Pa. 464; City of Litchfield v. Ballou, 114 U.S. 190, 29 L.Ed. 132.
The power to levy a tax is limited to a public purpose. The items in the appropriation bill of the legislature for 1901 "For annual dues to League of American Municipalities, $ 30," "For tri-state drainage investigation, $ 200." The foregoing amounts levied were not for public purposes. Dodge v. Mission Township, 54 L. R. A. 242, 107 F. 827; 1 Desty on Taxation, 15, note 11; Hanson v. Vernon, 27 Ia. 47; Ferris v. Vanier, 6 Dak. 186, 42 N.W. 31, 3 L. R. A. 713; Cook v. Portland, 13 L. R. A. 533; 1 Desty on Taxation, p. 17, and note 9; Cole v. LaGrange, 19 F. 871; People v. Morris, 13 Wend. 325; Conway v. Cable, 37 Ill. 82; Hart v. Henderson, 17 Mich. 218; Dean v. Borchsenius, 30 Wis. 236; Dean v. Charlton, 23 Wis. 590.
The curative power of the legislature reaches things voidable only, not void. Desty on Taxation, p. 620, note 12; Kimball v. Town of Rosendale, 42 Wis. 412; People v. City of Brooklyn, 71 N.Y. 495; 2 Desty on Taxation, 1285.
The legislature cannot directly exercise the power of assessment or taxation within an incorporated city, but must empower the municipal authorities to do so. Taylor v. Palmer, 31 Cal. 241; People v. Lynch, 51 Cal. 15; N.D. Const., article 6, section 130; People v. Common Council, 28 Mich. 228; Schumacker v. Toberman, 56 Cal. 508; People v. Lynch, 51 Cal. 15; Bixler v. Sacramento County, 59 Cal. 698.
The plaintiff was not obliged to tender money which the property mentioned in the complaint should contribute as taxes for all conceivable purposes, as a condition of relief. The point was not raised or argued in the court below; that court, in attempting to apply a rule of equity, wholly disregarded the practice of equity on such occasions, as respondents, under the equity rule should have demurred. 1 Daniels on Ch. Pr. 587; Marsh v. Marsh, 16 N.J.Eq. 391; Miller v. Jamison, 24 N.J.Eq. 41; Bliss on Code Pleading, section 10; Bonesteel v. Bonesteel, 28 Wis. 245; 1 Daniels on Ch. Pr. 587; Grimes v. Grimes, 143 Ill. 550; Johnson v. Burnside, 3 S.D. 230, 52 N.W. 1057.
When a tax is absolutely void the defendants have no equity to receive such a tax and plaintiff is under no obligation to pay or tender any part of it. 1 Pom. Eq. Jur., sections 385-386; N. P. Ry. Co. v. Barnes, 2 N.D. 310, 51 N.W. 386.
The great weight of authority holds that the law does not require the payment or tender of a tax alleged to be void, as a condition precedent to the relief. Gage v. Kaufman, 133 U.S. 471, 10 S.Ct. 406; Harper v. Row, 53 Cal. 233; Cooley on Taxation, p. 552; Desty on Taxation, 908; Conway v. Cable, 37 Ill. 82; Hart v. Henderson, 17 Mich. 218; Clement v. Everest, 29 Mich. 19; Barber v. Kelly, 11 Minn. 370; Barber v. Evans, 27 Minn. 92, 6 N.W. 445; Power v. Larabee, 2 N.D. 141; 49 N.W. 724; O'Niell v. Tyler, 3 N.D. 47, 53 N.W. 434; N. P. Ry. Co. v. McGinnis, 4 N.D. 494, 61 N.W. 1032; Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188; Salmer v. Lathrop, 10 S.D. 216, 72 N.W. 570; Siegel v. Supervisors of Autagamie Co., 26 Wis. 70; Marsh v. Supervisors of Clark Co., 42 Wis. 502; Philleo v. Hiles, 42 Wis. 531.
In the absence of any legal assessment and levy the owner cannot determine what sum he should tender. Barber v. Evans, 27 Minn. 92, 6 N.W. 445; O'Niell v. Tyler, 3 N.D. 47, 53 N.W. 434; Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188.
Equity will restrain the issue of a deed upon tax sale when the assessment was invalid by reason of the lack of an assessor's return oath attached to the roll, without requiring other proof of injury to the plaintiff from the pretended tax. Marsh v. Supervisors of Clark Co., 42 Wis. 502.
The three-year limit within which to commence suit to quiet title does not apply to this action. Sweigle v. Gates, 9 N.D. 538, 84 N.W. 481; Roberts v. First Nat. Bank, 8 N.D. 504, 79 N.W. 1049; Salmer v. Lathrop, 10 S.D. 216, 72 N.W. 570.
The statute of limitations is not set in motion if the defects relate to matter that is jurisdictional to issue a tax deed. Roberts v. First National Bank, 8 N.D. 504, 79 N.W. 1049.
Lack of an assessor's oath is jurisdictional and the statute of limitations does not run. Eaton v. Bennett, 10 N.D. 346, 87 N.W. 188.
Emerson H. Smith, for respondents, The County of Cass, Arthur G. Lewis, as county auditor, and Melvin S. Mayo, its county treasurer.
The word "mandatory" in section 29, Const. N.D., as applied to section 197 of such constitution, applies to judicial, not ministerial, acts of the assessor. This is the only construction in harmony with the intent of the two sections mentioned when read together. Priggs v. Pennsylvania, 16 Peters 612, 41 U.S. 539; 10 L.Ed. 1061.
The words in section 179 of the constitution, "assessed in the manner provided by law," were used in a popular and not a technical sense, and the court has a right to discover the intent of the framers of that instrument. Miller v. Dunn, 72 Cal. 465, 14 P. 27.
In determining the office of words used in a constitution the object is to give effect to the intent of the people adopting it. 6 Am. & Eng. Enc. of Law (2d Ed.), 921; Cooley on Const. Lim. (5th Ed.) 66; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23; Newell v. People, 7 N.Y. 97; People v. Fancher, 50 N.Y. 291.
Two things are indispensably essential to an assessment, viz.: First, the property to be assessed must be so described as to mark its identity; second, its identity disclosed, its validity must be determined. The legislature cannot dispense with these requirements nor can they be cured. Cooley on Const. Lim. (6th Ed.) 469; Sinclair v. Learned, 51 Mich. 345, 16 N.W. 672.
Failure to affix the assessor's affidavit of assessment is merely an irregularity which in no way prejudices the taxpayer. It can therefore be cured and is fully cured by the curative acts of the legislature. Chapters 158 and 166, Laws of 1903.
The levy for 1896 was valid. It is in harmony with the law in force at that time and should be construed to be a valid levy. Conceding that the record of the commissioners discloses two complete levies--one in percentages and the other in specific amounts, as the law required the levy to be made by percentages--only one would be a levy. The same...
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