Eddy v. Krekow

• Decision Date: 27 May 1926
• Docket Number: No. 5061.,5061.
• Citation: 54 N.D. 220,209 N.W. 225
• Parties: EDDY et al. v. KREKOW et al.
• Court: North Dakota Supreme Court

54 N.D. 220

209 N.W. 225

EDDY et al.

v.KREKOW et al.

No. 5061.

Supreme Court of North Dakota.

May 4, 1926.

On Rehearing, May 27, 1926.

Syllabus by the Court.

In construing statutes, the courts must take judicial notice of the history of the terms employed, and, where the statutes have been in existence for a long period of time, it must be presumed that the Legislature has at all times been aware of the meaning originally attaching to those terms.

Where for a long period of years legislation has existed prohibiting county commissioners from making “extraordinary outlays” without a vote of the people, and where such relative expression has been used in a statute in contradistinction to outlays that may be made from current annual revenues, a new meaning cannot be ingrafted on the expression “extraordinary outlays” by reason of changing conditions which greatly increase the current annual revenues.

Levy of taxes by county commissioners, based on itemized statement of county expenses, may include amounts deemed necessary for erecting and repairing courthouses, jails, and other necessary buildings, where expenditure is not greater than can be paid out of revenue of current year (Comp. Laws 1913, §§ 2148, 2150, 3294).

Sections 2148 and 2150 of the Compiled Laws for 1913, authorizing the levy of taxes by county commissioners based upon an itemized statement of the county expenses for the ensuing year, and limiting the levy for ordinary county revenue to not more than eight mills on the dollar, are construed in connection with section 3294 of the Compiled Laws for 1913, and are held to authorize the inclusion within the levy of amounts that may be deemed necessary “for the erection and repairing of courthouses, jails, and other necessary buildings,” where the expenditure for the purpose is not greater than can be paid out of the revenue for the current year.

Sections 3280 and 3294 of the Compiled Laws for 1913 are construed in the light of their history (sections 18 and 27 of chapter 4 of the Laws of Dakota Territory for 1868-1869 and sections 32 and 43 of chapter 21 of the Revised Codes [Pol. Code] of 1877), and it is held that they authorize the making of certain public improvements by the board of county commissioners without the submission of the question to a vote, where the contemplated expenditure is not greater in amount than can be provided for by the annual tax.

On Rehearing.

Repeals by implication are not favored.

It is held, for reasons stated in the opinion, that the limitation of 8 mills on the dollar upon the levy for ordinary county revenue, including the support of the poor, as contained in section 2150, Compiled Laws for 1913, is not repealed by chapter 318 of the Session Laws of 1923.

Section 2148 of the Compiled Laws for 1913, which limits the power of the board of county commissioners in levying taxes to an amount that will equal the county expenses for the ensuing year, plus 5 per cent., plus interest upon and 10 per cent. of the principal of outstanding indebtedness, is construed and held not to negative or limit the power of the board to provide for certain improvements enumerated in section 3294 of the Compiled Laws for 1913.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Suit by P. W. Eddy and others, taxpayers, on behalf of themselves and all other citizens similarly situated, against William Krekow and others, Board of County Commissioners of Stutsman County, and others, for an injunction. From a judgment denying plaintiffs' motion for judgment on the pleadings and dismissing the suit plaintiffs appeal. Affirmed.C. S. Buck and M. C. Freerks, both of Jamestown (E. B. Cox, of Bismarck, on rehearing), for appellants.

R. D. Chase, State's Atty., and Harry Rittgers, Asst. State's Atty., both of Jamestown (Divet, Holt, Frame & Thorp, of Fargo, of counsel), for respondents.

BIRDZELL, J.

This is an action brought by the plaintiffs as taxpayers, suing on behalf of themselves and all others similarly situated, to enjoin the defendants from proceeding with the construction of an addition to the courthouse. A temporary injunction was obtained in the court below, and later, upon the answer of the defendants coming in, there being no important facts at issue, the matter was presented to the trial court for determination on the pleadings or upon stipulated facts substantially in accord with the facts pleaded. A judgment was entered denying the plaintiffs' motion for judgment on the pleadings and dismissing the action. From that judgment the plaintiffs appeal. After the usual formal allegations of existence and capacity of the various parties, the complaint alleges that the county of Stutsman is and was the owner of a certain courthouse building; that during the early part of 1925 the defendants embarked upon a building project, contemplating large and expensive extensions and additions thereto; that they employed architects to prepare and submit plans at an expense of more than $1,200; that the architects submitted plans and specifications for the construction of an addition on the west end of the courthouse building about 40x60 feet in dimensions and two stories high, to cost approximately $40,000, not including furniture and fixtures; that, as a part of the plans and specifications submitted, there was a tentative draft and plan of an entirely new courthouse building of which the proposed addition and extension would form a unit or part, which entire structure, were it all built, would cost at least $200,000; that the board of county commissioners accepted the plans and specifications in so far as they applied to the extension and addition, and instructed the county auditor to advertise for bids; that a short while prior to the advertising there was prepared a budget showing the current needs of the county for the ensuing year, in which there was included the sum of $11,500 for office equipment and vaults, and the further sum of $37,000 for additions and extensions to public buildings, which items were intended to cover the cost of the proposed new building or extension; that these items were included in the general levy for the year 1925, but not itemized or mentioned, which levy amounted to $81,000; that there was no other appropriation of funds for the payment of such addition or extension than in the budget; that the proposition had not been submitted to a vote, and that there existed no building fund out of which the cost could be paid; that bids of various of the defendants had been accepted; and that the board of county commissioners were about to enter into contracts with the successful bidders. The relief prayed for is that the defendants be permanently enjoined from attempting to construct such improvement without first submitting the proposition to a vote of the people of the county. The answer, as previously stated, takes issue upon none of the essential allegations of fact contained in the complaint; but it does, however, justify the reasonableness and public policy involved in the actions sought to be enjoined.

[3][4] The only question to be considered on this appeal is the power of the county commissioners to proceed with an improvement of the kind in question, to be paid for in the manner contemplated, without first submitting the proposal to a vote of the people of the county. The question of authority is, of course, dependent upon statutes, and, unfortunately, the statutes in which the matter in hand has been dealt with are not couched in the clearest language. Indeed, some of the expressions used are so poorly adapted to convey a clear meaning that misunderstanding may be expected to result. Note the statutes: First. Section 2148 of the Compiled Laws for 1913, a general provision which purports to regulate the levying of taxes by various taxing bodies and the determination of the rate by the county auditor, in so far as it affects the questions involved in this case, reads:

“The county taxes shall be levied by the county commissioners at the time of their meeting in July in each year. Such taxes shall be based upon an itemized statement of the county expenses for the ensuing year and a general statement of the outstanding indebtedness of the county, which statements shall be included in the published proceedings of said board, and no greater levy of county tax shall be upon the taxable property of any county than will equal the amount of such expense, plus five per cent. of such amount, together with the amount of one year's interest upon, and ten per cent. of the principal sum of its outstanding indebtedness.”

Section 2150 limits the levy “for ordinary county revenue, including the support of the poor,” to not more than eight mills on the dollar. In addition to this, there are limitations upon taxes for emergency and other purposes such as roads and bridges.

Section 3280 provides:

“It [the board of county commissioners] shall submit to the people of the county at any regular or special election any question involving an extraordinary outlay of money by the county or any expenditure greater in amount than can be provided for by the annual tax, or the construction of any courthouse, jail or other public building by establishing a building fund to aid in the construction of the same when the board shall consider the permanent buildings of the county aforesaid, inadequate for the needs of its business and that it is not to the best interests of the county to issue bonds to aid in such construction or for the construction of such buildings by any other procedure as is, or may be provided by law, or whether it will aid in constructing or construct any highway or bridge.”

Section 3281 provides for the submission to vote of any proposed expenditure greater in amount than can be provided for by the annual tax. Section 3282 governs the mode of submission. Section 3283 provides that, when the question submitted involves the establishment of a building...