Great N. Ry. Co. v. Duncan

• Decision Date: 03 June 1919
• Citation: 176 N.W. 992,42 N.D. 346
• Parties: GREAT NORTHERN RY. CO. v. DUNCAN, County Treasurer, et al.
• Court: North Dakota Supreme Court

42 N.D. 346

176 N.W. 992

GREAT NORTHERN RY. CO.

v.DUNCAN, County Treasurer, et al.

Supreme Court of North Dakota.

June 3, 1919.

Syllabus by the Court.

Section 1 of chapter 254, Session Laws of 1915, which provides for limiting taxes levied at a certain rate in mills during the years 1915 and 1916, is construed, and held to limit the taxes that may be extended by the county auditor for school purposes, under section 1224, Compiled Laws of 1913.

A county auditor is an officer “whose duty it may be, under existing laws to levy taxes at a certain rate in mills,” within section 1 of chapter 254 of the Session Laws of 1915.

Chapter 254 of the Session Laws of 1915, has no application to the extension of taxes previously levied for the discharge of pre-existing indebtedness.

Section 183 of the Constitution, which limits the authority of the various political subdivisions to incur debts in excess of 5 per centum upon the assessed valuation of the taxable property therein, is self-executing as a limitation upon the power to incur debts.

Section 183 of the Constitution, when so construed as to harmonize with section 130, which confers upon the Legislature power to provide for the organization of municipal corporations and restricts “their powers as to levying taxes and assessments, borrowing money and contracting debts,” is not so far self-executing as to confer upon political subdivisions the power or the right to contract indebtedness up to 5 per cent. of the assessed valuation without legislative authority.

The proviso contained in section 183 of the Constitution, to the effect that incorporated cities may become indebted in additional amounts for the purpose of furnishing water supply or constructing sewers, does not render municipal corporations immune from additional restrictions concerning municipal indebtedness that may be imposed by legislation.

The requirements of section 61 of the Constitution, to the effect that no bill shall embrace more than one subject which shall be expressed in its title, are not violated where the title fairly indicates the general scope of a bill designed to accomplish a single object.

Where a legislative bill, considered in the light of facts generally known, is designed to accomplish one general object, and this is fairly indicated in the title, the title is not multifarious within the inhibition of section 61, although it indicates that several subjects related to the general object are embodied in the bill.

Additional Syllabus by Editorial Staff.

The term “subject,” as used in Const. § 61, providing that no bill shall embrace more than one subject which shall be expressed in its title, is generally held to mean the matter to which the statute relates.

Appeal from District Court, Towner County; Buttz, Judge.

Action by the Great Northern Railroad Company against J. C. Duncan, as Treasurer of the County of Towner, State of North Dakota, and the County of Towner. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

Robinson and Grace, JJ., dissenting.

William Langer, Atty. Gen., and George K. Foster, Asst. Atty. Gen., for appellants.

Murphy & Toner, of Grand Forks, and Flynn & Traynor, of Devils Lake, for respondent.

BIRDZELL, J.

This is an appeal from an order entered in the district court of Towner county, overruling a demurrer to a complaint. The action is one to recover certain taxes alleged to have been paid by the plaintiff under protest. The facts alleged in the complaint may be briefly stated as follows: In the year 1915 the county auditor of Towner county levied a mill tax for school purposes upon the property of the plaintiff, acting under the authority expressed in section 1224, Compiled Laws of 1913.

The tax is $114.69 in excess of the amount which the auditor would be authorized to levy under chapter 254 of the Session Laws of 1915, if the provisions of this chapter were applicable and if the authority contained in section 1224, Compiled Laws of 1913, is restricted by the later enactment. The tax was paid under protest.

It is not disputed that the complaint states a good cause of action provided the plaintiff's theory as to the meaning and applicability of the statutes involved is correct and provided chapter 254 of the Session Laws of 1915 is constitutional. The controlling statutory provisions are as follows:

Section 1224, Compiled Laws of 1913:

“The county auditor of each county shall at the time of making the annual assessment and levy of taxes levy a tax of one dollar on each elector in the county for the support of public schools, and a further tax of two mills on the dollar on taxable property in the county, to be collected at the same time and in the same manner as other taxes are collected, which shall be apportioned by the county superintendent of schools among the school districts of the county.”

Chapter 254 of the Session Laws of 1915, in so far as applicable, reads:

“Section 1. The board of county commissioners of any county, or any county officer, any township board, or any township officer, any village board, or any village officer, any city council or city commission, park board, or board of education of any city, or any officer thereof, or the officers of any school district, or any other taxing district, or any officer thereof, that is authorized, or whose duty it may be, under the laws of the state, to fix or make any levy on the assessed valuation of property for the purposes of any taxation, shall not during the years 1915 and 1916 levy any amount for purposes of taxation that will exceed by more than five per cent. for the year 1915, and 10 per cent. for the year 1916, the amount that such board or officer was authorized to levy on the assessed valuation of 1914. Any of the aforesaid officers, whose duty it may be under existing laws to levy taxes at a certain rate in mills, or fraction thereof, shall not levy during the years 1915 and 1916 at any rate that will produce revenue in excess of 105 per cent. and 110 per cent., respectively, of that which would be produced by the levy of the prescribed rate upon the assessed valuation of 1914. * * *”

Section 2 provides that the salaries of officials which are determined by the amount of the assessed valuation of the property within any political subdivision shall not be increased during the years 1915 and 1916 beyond the amount authorized on the basis of the assessed valuation for the year 1914. Section 3 likewise continues substantially the existing assessed valuation basis as to all matters of official right, duty, or authority where their exercise or obligatory character is dependent upon assessed valuation of property. Section 4 likewise continues the existing assessed valuation as a basis for the debt limits of political subdivisions up to July 1, 1917, allowing, however, for 10 per cent. increase annually, where warranted by a higher assessed valuation; and section 5 repeals, “All acts or parts of acts in conflict. * * *”

[1][2][3] While the respondent contends that section 1224 of the Compiled Laws of 1913 provides an unconstitutional method of levying taxes for the support of the schools, it is not necessary to consider the merits of the contention for the reason that, in this action, it only seeks to recover the amount of such taxes in excess of that authorized by chapter 254 of the Session Laws of 1915. Having reached the conclusion, for reasons which will later be assigned, that the respondent is entitled to recover the excess sued for without regard to the alleged unconstitutionality of section 1224, it is neither necessary nor proper to determine the constitutional question presented by the respondent. In suing for the excess only, the plaintiff, in the complaint as framed, tacitly admits the authority to levy a proper amount in the manner provided for in section 1224. With the question of the constitutionality of section 1224 thus eliminated, there are but two questions presented for decision. The first involves the interpretation of section 1 of chapter 254 of the Session Laws of 1915; and the second, the constitutionality of the chapter.

It is argued that the county auditor is not, within the language of section 1, an “officer * * * that is authorized, or whose duty it may be, under the laws of the state, to fix or make any levy on the assessed valuation of property for purposes of any taxation,” and whose authority is so limited that the amount levied may not exceed by more than 5 per cent. for the year 1915 the levy of the year before. And to this argument is added the further contention (which, if sound, would preclude the plaintiff's recovery) that the county auditor, not being an officer authorized to fix or levy taxes within the above quoted language, is not restricted by the immediately following sentence, which provides as follows:

“* * * Any of the aforesaid officers, whose duty it may be under existing laws to levy taxes at a certain rate in mills, or fraction thereof, shall not levy during the years 1915 and 1916 at any rate that will produce revenue in excess of 105 per cent. and 110 per cent., respectively, of that which would be produced by the levy of the prescribed rate upon the assessed valuation of 1914.”

Therefore, the contention runs, chapter 254 is wholly inapplicable to the duties of a county auditor in connection with the levy of the mill tax for school purposes under section 1224. From this it would follow that the county auditor must extend a levy of two mills upon all property assessed regardless of any increase in the valuation.

It is perfectly obvious that the last sentence quoted above, which refers to officers whose duty it may be to levy taxes at a certain rate in mills, could not refer to any officer or set of officers in whom were vested any discretion in the matter of levying taxes. For the very requirement of the levy “at a certain rate in mills” excludes the idea of discretion on the part of the officer...