Federal Land Bank of St. Paul v. Johnson

• Decision Date: 20 August 1937
• Docket Number: 6486
• Citation: 274 N.W. 668,67 N.D. 534
• Court: North Dakota Supreme Court

274 N.W. 668

67 N.D. 534

FEDERAL LAND BANK OF ST. PAUL, a Body Corporate, Appellant, v. CARL J. JOHNSON, as County Treasurer, LaMoure County, North Dakota, and the State of North Dakota, Doing Business as Hail Insurance Department, Respondents

No. 6486

Supreme Court of North Dakota

August 20, 1937

Syllabus by the Court.

1. Courts will not determine constitutional questions abstractly or in a hypothetical case; nor will they anticipate a question of constitutional law in advance of the necessity of deciding it. It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute, that its validity may be called in question by a suitor, and determined by an exercise of the judicial power. State ex rel. Kaufman v. Davis et al., 59 N.D. 191, 229 N.W. 105.

2. Under the laws of North Dakota (chapter 137, Laws 1933) general land taxes may be paid without payment of hail indemnity taxes.

Appeal from District Court, La Moure County; Hutchinson, Judge.

Mandamus proceeding by the Federal Land Bank of St. Paul against Carl J. Johnson, as County Treasurer, La Moure County, North Dakota, and the State of North Dakota, doing business as Hail Insurance Department. From a judgment denying the writ, the plaintiff appeals.

Reversed and remanded, with directions.

John Thorpe and George F. Shafer, for appellant.

The legislature has the power, under the police power of the state, to adopt reasonable recording laws affecting instruments relating to real property, and that such recording laws may, under some circumstances, apply to instruments in existence prior to the adoption of the recording act. Jackson v. Lamphere, 7 L. ed. 679; Vance v. Vance, 108 U.S. 514, 27 L. ed. 808; McCoy v. Davis, 38 N.D. 328, 164 N.W. 951.

Registration laws, like other laws, depending upon the police power of the state for their validity, must conform to recognized constitutional limitations. 12 C.J. 929.

The essential quality of the police power as a governmental agency is that it imposes on persons and property burdens designed to promote the safety and selfare of the public at large. 12 C.J. § 441, note 28.

What constitutes a proper subject of regulation under the police power is a judicial question. Bonnett v. Vallier (Wis.) 116 N.W. 885, 17 L.R.A.(N.S.) 486.

One of the tests of impairment is that the value of a contract has been diminished. New burdens cannot be imposed so as to decrease materially the value and benefit of a contract. 6 R.C.L. 329, § 320; Haefelein v. Jacob, 94 N.Y.S. 466; Randall v. Sackett, 77 N.Y. 480.

P O. Sathre, Attorney General, Chas. A. Verret Assistant Attorney General, and A. G. Porter, State's Attorney, for respondent.

The true test of unlawful statutory discrimination is whether all who are similarly situated are similarly treated, and whether those who are similarly situated are hindered or prevented in their competition with one another. Gunn v. Minneapolis, St. P. & S. Ste. M.R. Co. 34 N.D. 418, 158 N.W. 1004.

The application to instruments executed prior to the passage of registration acts requiring the recording of deeds or mortgages within a reasonable time after their passage does not render such statutes void as impairing vested rights. Salmon v. Huff (Tex.) 28 S.W. 1044; Citizens State Bank v. Julian (Ind.) 55 N.E. 1017.

It is within the power of state legislatures to pass recording acts by which the elder grantee shall be postponed to a younger if the prior deed is not recorded within a specified time, whether the deed is dated before or after the passage of the recording act. 23 R.C.L. 172.

The constitutional restriction that no bill shall embrace more than one subject which shall be expressed in its title as provided by the North Dakota constitution should be liberally construed. Power v. Kitching, 10 N.D. 254, 86 N.W. 737; State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705; State ex rel. Poole v. Peake, 18 N.D. 101, 120 N.W. 47; 9 C.J. 816; State ex rel. Gammons v. Shafer, 63 N.D. 128, 246 N.W. 874.

Christianson, Ch. J. Burr, Nuessle, and Morris, JJ., and Grimson, Dist. J., concur. Mr. Justice Burke did not participate, Hon. G. Grimson, Judge of Second Judicial District, Sitting in his Stead.

OPINION

CHRISTIANSON

The plaintiff brought this proceeding in mandamus to compel the county treasurer of LaMoure county to accept payment of the general taxes for 1935 against a tract of land in LaMoure county belonging to the plaintiff and to issue to it the usual official tax receipt. The state of North Dakota, doing business as the State Hail Insurance Department, was joined as a party defendant. The defendants interposed a general demurrer to the petition. The demurrer was sustained and the plaintiff has appealed.

In the petition it is alleged that the plaintiff now is, and since March 21, 1928, has been, the owner of a certain 160 acre tract of land in LaMoure county; that on May 15, 1928, it entered into a contract in writing with one Gohner whereby it agreed to sell and convey said land to Gohner upon the payment by him of $ 2,400.33 in certain annual installments; that by the terms of the contract Gohner agreed to pay all taxes assessed against the premises commencing with the year 1925; that Gohner made default in the payment of the installments and that on February 1, 1936, the plaintiff caused the contract to be cancelled; that the contract had not, and has not, been recorded in the office of the register of deeds of LaMoure county; that the purchaser, Gohner, failed to pay the general taxes against the land for the year 1935, amounting in all to $ 34.01, and that such taxes have become delinquent; that the defendant, state of North Dakota, doing business as the State Hail Insurance Department, is the beneficial owner of the hail indemnity tax levied against the real property for the year 1935 which said hail indemnity tax has not been paid; that the plaintiff made application in writing to the defendant county treasurer of LaMoure county for permission to pay said general taxes without the inclusion of the hail indemnity taxes; that the plaintiff duly tendered to the said defendant county treasurer the full amount of the said 1935 general taxes but that said tender was rejected and that the plaintiff thereupon deposited the sum so tendered in payment of the said general taxes in the Bank of North Dakota to the credit of the said defendant county treasurer and served written notice of such deposit upon the said defendant county treasurer. It is further alleged upon information and belief that the defendant county treasurer refused to accept payment of the said 1935 general taxes for the reason that said offer was not accompanied by an offer to pay the hail indemnity taxes; that said refusal was due to the following provision contained in § 10, chapter 137, Laws 1933: "It is further provided that contracts for sale of lands and mortgages executed prior to the approval of this Act must be recorded within ninety days of the effective date of this Act in order to preserve their status as a prior lien to the hail indemnity taxes levied hereunder."

It is further alleged by the plaintiff that the above quoted statutory provision is violative of certain provisions of the constitution of the state of North Dakota and the constitution of the United States and, hence, is null and void.

It is further alleged that the plaintiff has no other plain, speedy and adequate remedy at law, and that unless a writ of mandamus is issued compelling the defendant county treasurer to accept payment of the general taxes for the year 1935 without payment of the said hail indemnity taxes and further compelling the said defendant county treasurer to issue an official receipt for such payment that said county treasurer will continue to refuse to accept such payment and to issue such receipt.

Arguments have been presented on the question of the constitutionality of the above quoted statutory provision; but as we view the case it is the duty of the county treasurer to accept payment of the general taxes and to issue an official receipt for such payment without regard to whether the hail indemnity taxes are or are not paid and this duty exists wholly without regard to whether the above quoted statutory provision is valid or invalid. This being so, the constitutional questions raised on the argument are not properly here for determination.

"A constitutional question does not arise merely because it is raised and a decision thereon sought. A party who assails the validity of a statute on constitutional grounds must show that he is prejudiced by the alleged unconstitutional provision, and that a decision on the constitutional question is necessary in order to protect him in the enjoyment of the rights guaranteed to him by the Constitution. 'Courts will not assume to pass upon constitutional questions unless properly before them, and the constitutionality of a statute will not be considered and determined by the courts as a hypothetical question. It is only when a decision on its validity is necessary to the determination of the cause that the same will be made, and not then at the instance of a stranger, but only on the complaint of those with the requisite interest. These principles have been recognized by the Supreme Court of the United States. That tribunal has announced that it rigidly adheres to the rule never to anticipate a question of constitutional law in advance of the necessity of deciding it, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, and never to consider the constitutionality of state legislation unless...