Goodman v. Christensen
| Decision Date | 17 October 1941 |
| Docket Number | 6797 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 22, 1941, Reported at 71 N.D. 306 at 317.
Original application for supervisory writ.
On Petition for Rehearing.
Syllabus by the Court.
1. Under the provisions of sections 86 and 87 of the State Constitution and section 7339, Comp.Laws N.D.1913, the Supreme Court has superintending control over all inferior courts and in the exercise thereof has power to issue such original writs as may be necessary.
2. The provision in section 10 of chapter 269, Session Laws N.D.1941, to the effect that decisions of the district court under that chapter are final, does not deprive the Supreme Court of superintending control over the district court or restrict its power and authority to exercise its superintending jurisdiction.
3. The provision in section 10, chapter 269, Session Laws N.D.1941 directing the district court to determine appeals under that chapter before the first day of October does not deprive that court of power to enter judgment after October 1st in a case wherein it has acquired jurisdiction pursuant to the statute nor is the Supreme Court without authority to direct the district court to proceed in such a case after the date prescribed by statute has passed.
4. No relief from alleged excessive assessments can be granted under chapter 269, Session Laws N.D.1941, to petitioners who have not presented their complaints to local boards of review in organized territory or to the board of county commissioners acting as a local board of review if the property involved is taxable in unorganized territory.
5. If a bill, containing an emergency clause, passed by the legislature and approved by the governor, failed to receive a favorable vote of two-thirds of the members present and voting in either house the bill becomes a law on July 1st after the close of the legislative session.
6. For reasons stated in the opinion, it is held that the provisions of Chapter 269, Session Laws N.D.1941, affording relief from excessive tax assessments are wholly prospective and do not apply to 1941 assessments.
Original proceeding in the Supreme Court by David W. Goodman and others, petitioners, against Fred Christensen, Ben Koester and James Kennelly, the Board of County Commissioners and Board of Equalization in and for the county of Kidder, in the State of North Dakota, for a supervisory writ to direct the district court to proceed to hear an appeal to the district court from denial by county board of applications for redetermination of valuations for tax purposes of lands owned by the petitioners. On the hearing in the Supreme Court to determine whether the writ should issue, the State's attorney of Kidder county, representing the county commissioners, moved to quash the proceedings.
Writ denied.
R. L. Phelps and Knauf & Knauf, for petitioners.
The application (for a supervisory writ) is one which is clearly addressed to the superintending jurisdiction of the supreme court as the same is expressed in § 38 of the state Constitution. State v. District Ct. 49 ND 1127, 194 NW 745; State v. Nelson County, 1 ND 88, 45 NW 33; State v. Archibold, 5 ND 539, 66 NW 234.
It is for the supreme court to determine when a proper case is presented for the exercise of its superintending control. State v. District Ct. 49 ND 1127, 194 NW 745; State v. District Ct. 64 ND 402, 253 NW 744; State v. District Ct. 68 ND 219, 277 NW 843.
The taxpayer whose property is overvalued and who does not avail himself of the remedy to have the overvaluation of his property corrected cannot complain of his more diligent fellow taxpayer who does avail himself of his rights. Werner v. Riebe, 70 ND 533, 296 NW 422.
Where a statute has been repealed, and the repealing statute contains provisions identical, or practically identical, which some of the provisions of the statute declared to be repealed, such provisions are not repealed, but continue in force without interruption, so that all rights and liabilities that have been incurred thereunder are preserved. Golden Valley County v. Lundin, 52 ND 420, 203 NW 317; Gull River Lumber Co. v. Lee, 7 ND 135, 73 NW 430; Druggan v. Anderson, 269 U.S. 36, 70 L ed 151, 46 S.Ct. 14.
An appeal will lie from the action of equalization boards, in the assessment of property, to the courts. W.U.T. Co. v. Board, 118 P 376; Board v. Pumaeli, 85 P 1005; Kermott v. Bagley, 19 ND 349, 124 NW 408; Re Minneapolis, St. P. & Ste. M.R. Co. 30 ND 227, 152 NW 513.
Appeals from tax proceedings may be had where the legislature confers such appellate jurisdiction on the court. State v. Minnesota & O. Power Co. 121 Minn 421, 141 NW 839.
Objection to assessment need not be formal. Moffit v. Auditor, 141 NW 935.
Application must be made to the Board of County Commissioners for correction of the assessment and fixing of the taxes, or the same is waived. W. V. N. Bank v. Spencer, 77 SE 269; Peterson v. Board, 138 Iowa 717, 166 NW 818.
The taxing power of the state is vested in the legislature and is without limit, except such as may be prescribed by the Constitution. Aubol v. Engeseth, 66 ND 63, 262 NW 338; Shattuck v. Smith, 6 ND 56, 69 NW 5.
Dismissal of proceedings before the tax commissioners or board on petition for correction of overvaluation of property for taxation purposes is appealable to the court. Opinion of Justices, 179 A 357; Henck v. Dovan, 197 NE 374; 26 RCL 449, § 405.
Arne Vinje, State's Attorney, and T. A. Thompson, for respondents.
Where it is decided that the county auditor is a ministerial officer, the 1939 Act did not amend an old initiated law. State ex rel. Strutz v. Huber, 69 ND 788, 291 NW 126; Murray v. Mutschelknaus, 70 ND 1, 291 NW 118.
The 1939 Law did not make assessors of district courts. Werner v. Riebe, 70 ND 533, 296 NW 422; Great N.R. Co. v. Weeks, 297 U.S. 135, 80 L ed 532, 56 S.Ct. 426.
Laws found to be inconsistent, impossible of interpretation or application, and laws where it is impossible to get at the legislative intent are nullified. 59 CJ 608.
Roy K. Redetzke, amicus curiae.
This is an original proceeding in the supreme court. The petitioners seek a supervisory writ directing the district court to take certain proceedings and determine certain issues under the provisions of chapter 269, ND Session Laws 1941. On July 9, 1941, the petitioners presented to the Board of County Commissioners of Kidder county their respective petitions as individuals wherein they sought the redetermination of valuations for tax purposes of lands owned by the various petitioners. The applications were denied by the county board, whereupon an appeal was taken to the district court. Upon that appeal, the proceedings initiated by the separate petitions were consolidated into one action. The case was heard by the district court on September 22, 1941.
When the petitioners called their first witness, the Board of County Commissioners of Kidder county made a motion for dismissal of the proceedings upon various grounds, including the following:
In addition to the foregoing grounds for the motion for dismissal the respondents urged various constitutional objections to the validity of chapter 269.
The trial judge granted the motion and in the order for dismissal states that, "the Petition herein does not state facts sufficient to justify the court in assuming jurisdiction of this case or granting any relief to Petitioners or any of them, because the Petition is based upon the 1941 tax assessment and levy; and that the 1941 assessment was completed by the local assessors and by the local boards of review prior to July 1st, 1941; that chapter 269 of the Laws of 1941, upon which the cause of action of the Petitioners is founded did not become operative and did not take effect until July 1st, 1941."
The petitioners now seek in this court a supervisory writ directing the trial court to proceed to hear the appeal upon its merits and determine the full and true value of the various tracts of property involved. Upon a hearing in this court to determine whether such writ should issue, the state's attorney of Kidder county, representing the county commissioners, moved to quash the proceedings in this court. Among the grounds urged are, "That by the express terms of chapter 269, ND Session Laws 1941, the holding of a district court under said act is not subject to review," and "That for this court, now, to disturb the order of the district court would be an idle act, because under the express terms of chapter 269, Laws of 1941, no judgment or order disturbing an assessment for 1941 after October first, 1941, could be made."
Section 10 of the act in question provides: "That every decision of the district judge...
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