Ford Motor Co. v. State

• Decision Date: 05 August 1930
• Citation: 231 N.W. 883,59 N.D. 792
• Court: North Dakota Supreme Court

231 N.W. 883

59 N.D. 792

FORD MOTOR CO., a Corporation, Respondent, v. STATE OF NORTH DAKOTA, et al. STATE OF NORTH DAKOTA, Appellant

Supreme Court of North Dakota

August 5, 1930

Appeal from the district court of Burleigh County Jansonius, J. The defendant State of North Dakota appeals from an order overruling its demurrer to the complaint.

Affirmed.

James Morris, Attorney General, Charles Simon Assistant Attorney General, and Iver Acker, State Tax Commissioner, for appellant.

"A certificate that a wife acknowledged a deed to be her act and deed, in due form, is too vague and uncertain. The meaning of 'due form' cannot be determined." Lucas v Cobbs, 18 N.C. 228.

Taxpayer must make application for reassessment, or for a refund or take an appeal from the order of the tax commissioner denying such application within two years. Hoover Grain Co. v. Thoresen, 58 N.D. 359, 226 N.W. 521.

"Deficiencies in allegations of fact are not aided by alleging conclusions, they might or might not be warranted, depending upon the omitted allegations." Eberlien v. Guaranty Fund L. Asso. 58 N.D. 617, 226 N.W. 811.

"The rule requiring statutes to be given prospective operation only does not apply to statutes relating to procedure." Craig v. Herzman, 9 N.D. 140, 81 N.W. 288.

"The legislature may by amendment shorten the statutory period for the commencement of actions, and make such amendment applicable to existing causes of action, provided a reasonable time is fixed for the commencement of suits on such existing causes of action." Adams & F. Co. v. Kenoyer, 17 N.D. 302, 116 N.W. 98.

The time which limitation has to run may be reduced providing a reasonable time is given after the change to allow action to be begun. Fitzgerald v. Scovel Mfg. Co. 77 Conn. 528, 60 A. 32; Lockhart v. Yeiser, 2 Bush, 231; Mulvey v. Boston, 197 Mass. 178, 14 Ann. Cas. 349; Kreyling v. O'Reilly, 97 Mo.App. 384, 71 S.W. 372.

"A contract may be implied where an agreement in fact is presumed from the acts of the parties and this is the proper meaning of an implied contract." People v. Dummer, 274 Ill. 637, 113 N.E. 934.

O'Hare, Cox & Cox, for respondent.

"In the enactment of this statute the legislative policy with respect to the protection of rights when infringed by the state is clearly expressed" (Comp. Laws 1913, § 8175). Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 534.

The statute will only be given a retroactive effect, when it was clearly the intention of the legislature that it should so operate. Fisher v. Green, 142 Ill. 80, 31 N.E. 172; Brown v. Hughes (Minn.) 94 N.W. 438; Lander v. Deemy, 46 N.D. 273, 176 N.W. 922.

Where the meaning of a statute is doubtful, the construction placed upon it by the officers charged with the administration thereof is entitled to considerable weight. State v. Sorlie, 56 N.D. 650; State ex rel. Kinzer v. Hall, 50 N.D. 708, 197 N.W. 770; 25 R.C.L. 1043.

Christianson, J. Burke, Ch. J., and Birdzell, Nuessle, and Burr, JJ., concur.

OPINION

CHRISTIANSON

The plaintiff, which is a Delaware corporation, brought this action against the state of North Dakota, the tax commissioner and the state auditor of that state for the purpose of recovering $ 55,580.58, which it is alleged the plaintiff paid in excess of the income tax actually and legally due from it to the state of North Dakota for the years 1921 and 1922.

It appears from the complaint that the litigation arises out of a difference of opinion between the plaintiff and the tax commissioner of North Dakota in 1923 as to the proper basis of allocating or computing plaintiff's income for taxation in this state. It is alleged in the complaint that the plaintiff made due returns and paid its income tax for the years 1921 and 1922 but that the tax commissioner in 1923 made an additional assessment against the plaintiff for the years 1921 and 1922 aggregating $ 55,580.58 and that plaintiff, "on or about July 16, 1923, involuntarily and for the purpose of avoiding penalties and forfeitures and as a result of the demand of the tax commissioner paid the said sum to the treasurer of the state of North Dakota, under written protest." It is further alleged that the plaintiff made due demand for a refund of said moneys but that no action was taken by the tax commissioner upon said application for refund; that thereafter and on or about January, 1929 the plaintiff made a further demand in writing upon the tax commissioner for a refund of said sum and that on January 23, 1929 the then tax commissioner in writing formally approved and allowed the application; that on April 5, 1929 the plaintiff filed with the state auditor its said claim and demand for payment; and that the same was rejected by the state auditing board on said April 5, 1929. This action was instituted April 8, 1929. The defendants demurred to the complaint on the grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) that the court has no jurisdiction over the defendants, or the subject-matter of the action. The district court sustained the demurrer as to the defendants, the state auditor and the tax commissioner, but overruled it as to the state of North Dakota, and the state has appealed.

Appellant contends that the complaint fails to state a cause of action and that the court has no jurisdiction over the defendant state of North Dakota or the subject-matter involved: (1) Because the state has not consented to be sued upon a cause of action such as that which is set forth in the complaint; and (2) that the statute, under which the tax in question was imposed and collected, prescribed a remedy whereby a taxpayer could obtain a refund of any income taxes illegally collected by the state; that the remedy so prescribed is exclusive and that the plaintiff having failed to pursue it may not maintain an action.

These are the only issues presented for determination on this appeal. There is no contention that the complaint does not show that the plaintiff paid, under protest, the amount claimed in excess of the amount of income tax which it was actually and legally required to pay under the laws of the state of North Dakota. The demurrer admits that such payment was made; but appellant asserts that notwithstanding this fact the plaintiff has no right of action against the state for the two reasons stated.

(1) Has the state consented that a suit may be instituted against it upon a claim of the character in question here? Unless it has given such consent then no suit lies. 25 R.C.L. p. 412. In the constitution of this state it is provided: "Suit may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct." N.D. Const. § 22. In conformity with this constitutional direction the legislative assembly enacted the following statute:

"An action respecting the title to property, or arising upon contract may be brought in the district court against the state the same as against a private person. When such actions are not of a local nature they shall be brought in the county of Burleigh. The plaintiff at the time of commencing such action shall file an undertaking with sufficient surety to be approved by the clerk of court to the effect that he will pay any judgment for costs that may be rendered against him." (Comp. Laws 1913, § 8175.)

It has been said that the purpose and effect of statutory provisions like § 8175, supra, "as commonly understood, are undoubtedly nothing more than to refer to the judiciary the settlement of the questions of law and fact involved in the claims, and the determination in the form of a judgment of the rights of the parties." 25 R.C.L. p. 416.

It is conceded by both parties that the consent of the state to be sued must be found, if at all, within § 8175, supra. It is also conceded that the action is one for moneys had and received. It is the claim of the plaintiff that such action is one arising upon contract and hence falls within the provisions of § 8175, supra. The appellant on the other hand, contends that § 8175, supra, does not constitute a consent on the part of the state to be sued upon causes arising upon implied contract; but that this section merely constitutes a consent on the part of the state to be sued on any express contract that the state may have entered into. We have given these respective contentions due and careful consideration; have examined with care the arguments presented and authorities cited and have come to the conclusion that § 8175, supra, constitutes a consent on the part of the state to be sued in all cases "arising upon contract," within the ordinary accepted legal meaning of that term. Hence, an action for moneys had and received may be maintained against the state under said section; for the authorities are all agreed that an action for moneys had and received is one arising upon contract. Naderhoff v. Geo. Benz & Sons, 25 N.D. 165, 186, 47 L.R.A.(N.S.) 853, 141 N.W. 501, 510; 41 C.J. 28; People v. Bennett, 6 Abb. Pr. 343, 348; Coats v. Arthur, 5 S.D. 274, 58 N.W. 675; 19 Standard Proc. 842; 3 Williston, Contr. § 1618. It will be noted that the section otherwise authorizes actions to be brought against the state respecting title to property, and no limitation is made as to the kind of property. Neither is there any limitation as to the kind of contract out of which an action must arise. At the time this statute was adopted, and for a long time prior thereto, the laws in this jurisdiction defined contracts as being either express or implied. Civ. Code 1877, § 915. If the legislature had intended that the state should be subject to suit only upon express contract it would doubtless have said so. The authorities are generally...