Kershaw v. Burleigh County

• Decision Date: 21 March 1951
• Docket Number: No. 7241,7241
• Citation: 77 N.D. 932,47 N.W.2d 132
• Parties: KERSHAW v. BURLEIGH COUNTY.
• Court: North Dakota Supreme Court

Page 132

47 N.W.2d 132

77 N.D. 932

KERSHAW v. BURLEIGH COUNTY.

No. 7241.

Supreme Court of North Dakota.

March 21, 1951.

Rehearing Denied April 5, 1951.

Syllabus by the Court.

1. Following Adams County v. Smith and Dakota Collieries Co., 74 N.D. 621, 23 N.W.2d 873, it is held that in case of irreconcilable conflict between statutes it will be presumed the legislature intended that the earlier statute should give way to the later one so far as it is in conflict therewith, even though both statutes were passed at the same session of the legislature.

2. Statute that was last passed providing that on the sale of tax forfeited lands the county shall convey to the purchaser all of its right, title and interest therein, takes precedence over an earlier statute providing that there shall be reserved to the county fifty percent of all oil, natural gas, or minerals on or underlying all lands sold by it.

3. After adoption of North Dakota Revised Code of 1943 the previous history of conflicting sections thereof may be considered for the purpose of determining which section should prevail.

4. Codification of the statute laws of the state does not bar resort to the chronological and historical record of conflicting statutes carried into the new code nor render such history valueless in construing such conflicting statutes.

5. Where the statute prescribes a form of deed to be used by the county in conveying tax forfeited lands a deed in the form required by the statute but containing recitals of an explanatory nature in addition thereto is valid.

George S. Register, State's Atty., Burleigh County, N.D., James A. Hyland, Asst. St. Atty., Bismarck, C. E. Brace, Asst. Atty. Gen., for appellant.

Cox, Cox, Pearce & Engebretson, Bismarck, for respondents.

HAROLD B. NELSON, District Judge.

This is an action to determine adverse claims. On October 1, 1940, defendant county acquired by virtue of an Auditor's Tax Deed issued to it for non-payment of the taxes levied and assessed thereon for the year 1929, the Northeast Quarter of Section Eleven, Township One Hundred Forty, Range Seventy-eight, Burleigh County, North Dakota, and, on October 1, 1942 acquired in like manner the East Half of the West Half of Section Twelve in said township and range for non-payment of the taxes for the year 1933. The tract first above described was purchased from the county by plaintiffs on September 4, 1941, and the other tract was purchased by them on June 21, 1943, both tracts being purchased at private sale under the provisions of Sec. 57-2817 NDRC 1943. Both tracts were conveyed to plaintiffs by separate county deeds dated February 15, 1945. Neither of the purchasers had previously owned any part of the premises described in such deeds. Plaintiffs brought this action against the county as sole defendant. The county answered setting up a claim to fifty percent of all oil, natural gas, or minerals on or underlying said lands, basing its claim on the provisions of Sec. 11-2704 NDRC 1943, which originated as a part of Chap. 136, Laws of 1941. Plaintiffs claim title to all of the lands, including all oil, natural gas, or minerals on or underlying said premises by virtue of the deeds issued to them by the county pursuant to the provisions of sub-section 5, of Sec. 57-2815 NDRC 1943, which originated as a part of Chap. 286, Laws of 1941. The deeds from the county to the plaintiffs contained no reservations of any kind. The case was tried to the court without a jury on stipulated facts which included certified copies of the deeds from the county to the plaintiffs above referred to. The district court rendered judgment quieting title in plaintiffs, holding defendant had no interest in or claim to any part of the oil, natural gas, or minerals, on or underlying said premises by virtue of the statute first above cited. Defendant appealed from the judgment, assigning as error the disallowance of its claim to the stated percentage of the oil, natural gas, or minerals on or underlying said premises, and demands a trial de novo in this court.

The two statutes above cited are in irreconcilable conflict. Sec. 11-2704 under which defendant claims is as follows: 'Upon the sale of any lands by the county, whether such lands were acquired by tax proceedings, deed, quit-claim deed, or by any other method and whether such lands are transferred by the county by deed, contract, or lease, there shall be reserved to the county transferring each tract of land fifty percent of all oil, natural gas, or minerals which may be found on or underlying the land. Any transfer, deed, or lease which does not contain such reservation shall be construed as if such reservation were contained therein. This section, however, shall not apply to any lands redeemed by the former record owner thereof within one year after the date upon which the county acquires title thereto.'

Sub-division 5 of Sec. 57-2815, pursuant to which the two deeds to plaintiffs were issued, provides: 'Upon the payment of the purchase price in cash, or the payment in full of all installments, with interest to the date of payment, the county shall execute and deliver to the purchaser a deed conveying to him all right, title, and interest of the county in and to such property.'

It will be noted that the conflict arises because Sec. 11-2704 provides for a reservation of fifty percent of all oil, natural gas, or minerals on or underlying any land sold by the county, whereas, Sec. 57-2815 is mandatory that the county in conveying land acquired for non-payment of taxes must convey all of its right, title and interest therein to the purchaser.

The two statutes involved herein were enacted at the same session of the legislature and were both considered by this court in the case of Adams County v. Smith and Dakota Collieries Co., 74 N.D. 621, 23 N.W.2d 873, 876, where, in tracing their history through the legislature and their enactment into law, the court said: 'There being apparent conflicts between statutes enacted by the same legislative assembly the chronological order of their enactment becomes of major importance. An examination of the legislative journals of the 1941 Session discloses the order in which the various statutes under consideration were passed and approved by the Chief Executive.' Both acts 'were emergency measures and, therefore, became effective upon their passage and approval. Sec. 67, N. D. Constitution. * * * Ch. 136 was enacted as House Bill 123. It was passed by the House February 21, by the Senate March 5 and approved by the Governor March 14. Ch. 286 was enacted as Senate Bill 205. It was passed by both the Senate and the House on March 7 and signed by the Governor on March 15.'

The facts in the case of Adams County v. Smith, supra, as they relate to these two statutes are not materially different from the facts in the case at bar. In that case the county sold at private sale, land that had been forfeited to it for non-payment of taxes, and conveyed the same to the purchaser by a county deed which contained no reservation of any kind. The purchaser prospected for and found underlying the surface of the land purchased considerable quantities of coal which he sold on a royalty basis. The county later brought suit in an effort to recover from the purchaser one-half of the royalty he received, basing its claim on the reservation provided for in Sec. 11-2704. The court held that the county was not entitled to any part of the royalty, because Chap. 136, Laws of 1941, providing therefor had been repealed by the enactment of Chap. 286, Laws of 1941, so far as the prior act purported to reserve to the county fifty percent of all oil, natural gas, or minerals on or underlying lands sold by it, which it had acquired for nonpayment of taxes. In reaching its conclusion the court said: 'Although statutes passed at the same legislative session must, if possible, be construed together and effect given to each, nevertheless, if there be an irreconcilable conflict, it will be presumed that the legislature intended that the earlier statute should give way to the later. Buttorff v. City of York, 268 Pa. 143, 110 A. 728; Commonwealth ex rel. Matthews v. Lomas, 302 Pa. 97, 153 A. 124, 127, 74 A.L.R. 481. In the latter case the court said: '* * *, there is nothing to prevent the Legislature, if it sees fit, even during the same session, from changing its mind with respect to a particular subject of legislation, and, if the two acts are in irreconcilable conflict and cannot stand together, then the earlier must give way to the later."

The defendant does not seriously challenge the correctness of the holding in the above case but contends it has no application here because when the events giving rise to the decision in that case took place North Dakota Revised Code of 1943 had not been adopted, that the case was decided while Chapters 136 and 286, Laws of 1941, were in effect, and that the adoption of the code, which took effect January 18, 1945 (Sec. 1-0235 NDRC 1943, and Governor's Proclamation following title page Vol. 7 NDRC 1943) served to re-enact Chap. 136, Laws 1941 as Sec. 11-2704 and Chap. 286, Laws 1941 as Sec. 57-2815. Counsel for defendant contend that through this process of codification these statutes lost their historical rank, or, at least, that these sections of the code upon codification were simultaneously re-enacted.

Plaintiffs rely on the holding of this court in the case of Adams County v. Smith, supra, and the statutes therein considered.

The first question for determination is whether Sec. 11-2704 is in fact a later statute than Sec. 57-2815 by reason of the adoption of North Dakota Revised Code of 1943, or, whether the two statutes are of equal rank so far as the time of adoption is concerned. As previously noted we are here concerned with two irreconcilable statutes carried into the codified law. Statutes do not lose their historical rank or status through the process of...