Murie v. Cavalier County
| Decision Date | 26 February 1938 |
| Docket Number | 6528 |
| Citation | 278 N.W. 243,68 N.D. 242 |
| Court | North Dakota Supreme Court |
W. J. MURIE, Respondent,
v.
CAVALIER COUNTY, a Public Corporation, Otto Rasmusson, County Auditor, Cavalier County, North Dakota, Vivian Morrison, County Treasurer, Cavalier County, North Dakota, Neil Nicolson, Paul Kastner, A. C. Anderson, John Ryan, and Andy Johnson, County Commissioners, Cavalier County, North Dakota. CAVALIER COUNTY, a Public Corporation, Appellant
No. 6528
Supreme Court of North Dakota
February 26, 1938
Appeal from the District Court of Cavalier County, McKenna, Spec. J. Action to recover money. From a judgment for the plaintiff the defendant Cavalier County appeals.
Action by W. J. Murie against Cavalier County and others to recover the interest and penalty on certain taxes paid by plaintiff under protest. From a judgment for plaintiff, named defendant appeals.
Reversed.
Syllabus by the Court.
1. The court will not pass upon the validity of a statute unless it is necessary to a determination of the case before it.
2. Chapter 240, S.L.1937, providing for the adjustment and payment of delinquent taxes, is examined, and held for reasons stated in the opinion, to be permissive and not mandatory.
3. The word " may" will be construed as " must" in a statute only where the context or subject-matter compels such construction.
Sinness & Duffy, for appellant.
In the absence of some provision in the organic law to the contrary the legislature may remit penalties incurred by taxpayers for delinquencies in compliance with the tax law, and this it may do by enacting a statute which expressly provides for remission and also the legislature may authorize or require local officers or boards to remit penalties. 61 C.J. 1495; Re Burleigh County, 54 N.D. 919, 212 N.W. 233; Collins Oil Co. v. Perrine, 188 Iowa 295, 176 N.W. 303.
Courts are not bound by the Engrossed Act but may take notice of the House and Senate Journals. State v. Schultz, 44 N.D. 269, 174 N.W. 81.
Where the purpose of the inducing part of an act fails, the entire act must fail. McDermont v. Dinnie, 6 N.D. 278, 69 N.W. 294; Angell v. Cass County, 11 N.D. 265, 91 N.W. 72; Baird v. Burke County, 53 N.D. 140, 205 N.W. 17.
The desirability of a law does not justify the courts in making a law which the legislature would not have made. State v. Wendler, 94 Wis. 369, 68 N.W. 759.
The word "permit" does not include anything indicating compulsion. 48 C.J. 924.
The word "adjust" means to place in order; to fit or make accurate; to fix; to arrange; to settle; to ascertain. 1 C.J. 1237.
The word "may" is construed in a statute as "shall" only where the context or subject matter compels such construction. Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 67 L. ed. 1157, 30 A.L.R. 635; Board v. Davis, 22 L.R.A. 515; Minor v. Mechanics Bank, 7 L. ed. 47; 59 C.J. 1079; Emery v. First Nat. Bank, 32 N.D. 575, 156 N.W. 105; Walker v. Maronda, 15 N.D. 63, 106 N.W. 296.
The word "may" will never be construed as meaning "must" to create a new right. Gilmore v. Utica, 121 N.Y. 561.
Boards of County Commissioners have certain discretionary powers. Re Burleigh County, 54 N.D. 919, 212 N.W. 233; State v. Davis, 11 S.D. 111, 75 N.W. 897; Chaffee v. Crowley, 49 N.D. 111, 190 N.W. 308; Livesay v. De Armond (Or.) 284 P. 166; Picton v. Cass County, 13 N.D. 242, 100 N.W. 711.
E. J. Donovan and T. A. Thompson, Assistant Attorney General, for respondent.
An enrolled bill, in legislative parlance, is a reproduction or copy of the identical bill, passed by both houses of the general assembly. In the absence of other provisions a bill may be enrolled after the legislature has adjourned. 59 C.J. 588.
A change made in the title of a bill to correct a clerical error does not invalidate the act. Stow v. Common Council, 79 Mich. 595, 44 N.W. 1047.
The addition of a clause to a bill made by the engrossing clerk, which declares that the bill is to take immediate effect, when in fact it was ordered to take such effect by only one house of the legislature, does not destroy the validity of the enactment. Stow v. Common Council, 79 Mich. 595, 44 N.W. 1047; State v. Schmidt, 42 S.D. 267, 173 N.W. 838.
If a legislative act be in part unconstitutional, the valid portion shall stand, unless the result be one not contemplated or desired by the legislature. Baird v. Burke County, 53 N.D. 140, 205 N.W. 17; McDermont v. Dinnie, 6 N.D. 278, 69 N.W. 294; Angell v. Cass County, 11 N.D. 265, 91 N.W. 72.
The constitutional requirement that all laws of a general nature shall have a uniform operation is satisfied if the benefits and burdens of such law fall equally upon all members of the class or classes upon which it does operate. Vermont Loan & T. Co. v. Whithed, 2 N.D. 82, 49 N.W. 318; McDonald v. Hanson, 37 N.D. 324, 164 N.W. 8; Moody v. Hagen, 36 N.D. 471, 162 N.W. 704; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561.
Where, from a consideration of the whole statute, and its nature and object, it appears that the intent of the legislature was to impose a positive duty rather than a discretionary power, the word "may" will be held mandatory. 59 C.J. 635; Mills v. Fortune, 14 N.D. 460, 105 N.W. 235; Walker v. Maronda, 15 N.D. 63, 106 N.W. 296; State v. Kent, 4 N.D. 577, 62 N.W. 631.
A. R. Bergesen, C. G. Bangert, J. P. Cain and H. P. Jacobsen, amici curiae.
Nuessle, J. Christianson, Ch. J., and Burr, J., and Holt, Dist. J., concur. Morris, J., concurs in result. Sathre, J., being disqualified, did not participate, Hon. Daniel B. Holt, Judge of the First Judicial District, Sitting in his stead.
OPINION
NUESSLE
[68 N.D. 245] Plaintiff brought this action to recover from the defendant, Cavalier county, the sum of $ 121.81, being interest and penalty on certain real estate taxes upon real property in Cavalier county for the years 1931 to 1936, both inclusive, which the [278 N.W. 244] plaintiff was compelled to pay over objection and under protest. Plaintiff's action is predicated upon chapter 240, Session Laws of 1937. The only rights plaintiff has or claims to have arise by virtue of that statute and not otherwise. So the sole question presented on this appeal relates to the meaning, the effect, and the validity of such statute.
Chapter 240, Session Laws of 1937, was introduced as House Bill No. 59 on January 21, 1937. During the course of its passage the bill was amended by striking out everything following the words "A Bill" (1937 House Journal, pp. 169, 592, 616, 690, 692) and substituting a much different measure. In order to visualize the changes made by such amendment we have set forth below in parallel columns the Bill as introduced, and the Act as enrolled and engrossed, signed by the officers of the two Houses of the Legislative Assembly, approved by the Governor on March 16, 1937, and filed in the office of the Secretary of State.
[278 N.W. 245][68 N.D. 249] The plaintiff in his complaint alleges that he was the owner of the land in question; that on the 17th day of June, 1937, he offered to enter into an agreement with the board of county commissioners of Cavalier county pursuant to the provisions of chapter 240, supra, to pay the delinquent taxes against the said land for the years 1931 to 1936, both inclusive, and, in that behalf, to do and perform all the things required by him to be done and performed by said chapter, but that the board of county commissioners refused to enter into any agreement with him. He further alleges that he tendered to the county treasurer of said county the full amount of the delinquent taxes against the said land without penalty and interest and that said tender was refused; that in order to make it possible to have a deed transferring the land in question to a purchaser recorded, he was required to and did pay the full amount of the principal of said delinquent taxes in the sum of $ 585.00 and also the penalty and interest thereon in the sum of $ 121.81; and he seeks a recovery in the amount of said penalty and interest so paid by him.
The defendants, answering, admit the matters and things thus alleged by the plaintiff in his complaint, and further answering, allege that the board of county commissioners of said Cavalier county on April 8, 1937, adopted a resolution to the effect that "It is to the best interest of the county and all taxing subdivisions of the county that the [68 N.D. 250] County Treasurer and the County Auditor be not authorized by the said Board of County Commissioners to accept payments of delinquent taxes without penalty and interest under said law, and that no contract settlements of delinquent taxes be undertaken." The defendants further allege that § 3 of said chapter 240, supra, was not constitutionally enacted in this, that § 3 of the act as it was actually passed by the two houses of the legislative assembly, read as follows: "Section 3. Board of County Commissioners shall require the payment in full of all taxes to become due and payable against said property subsequent to November 1, 1936, before any agreement shall be made." But that the act as enrolled and engrossed and as signed by the officers of the legislative assembly and by the governor and as filed with the secretary of state reads as follows: "Section 3. Board of County Commissioners shall require the payment in full of all taxes to become due and payable against said property subsequent to November 1, 1937, before any agreement shall be made."
The case was tried to the court without a jury. The facts were stipulated. The trial court ordered judgment in favor of the plaintiff awarding him a recovery against the county for the amount of interest and penalty which he had paid on the delinquent taxes in question for the years 1931 to 1936, both inclusive. Judgment was entered accordingly and the [278 N.W. 246] defendant, Cavalier county, thereupon perfected this appeal.
In support of its appeal the defendant contends: (1) That...
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