Murray Bros. & Ward Land Co. v. Buttles

• Decision Date: 17 January 1916
• Citation: 32 N.D. 565,156 N.W. 207
• Court: North Dakota Supreme Court
• Parties: MURRAY BROS. & WARD LAND CO. v. BUTTLES et al.

32 N.D. 565

156 N.W. 207

MURRAY BROS. & WARD LAND CO.

v.BUTTLES et al.

Supreme Court of North Dakota.

Jan. 17, 1916.

Syllabus by the Court.

Chapter 35 of the Laws of 1903, which provides that: “As between vendor and vendee all special assessments upon real property for local improvements shall become and be a lien upon the real property upon which the same are assessed, from and after the first day of December next, after such assessments shall have been certified and returned to the county auditor, to the amount so certified and returned, and no more”-is applicable to drainage assessments upon country property, as well as to property which is benefited by local improvements within the limits of incorporated cities.

Where the terms of an act are doubtful, an attempt must be made to give effect to the intention of the Legislature, and in doing so all parts, words, and provisions of the act must be examined and considered, and, if possible, all parts must be brought into a harmonious whole, and statutes which are pari materia should be considered and an attempt made to harmonize the particular statute with such statutes and with the general law.

If statutes are a part of a general system relating to the same class or subject and rest upon the same reason, they should be construed, if possible, so as to be uniform in their application and in the results which they accomplish.

Section 2186 of the Compiled Laws of 1913, which provides that the lien of general taxes shall attach on the 1st day of December of each year, chapter 62 of the Laws of 1905, which provides for special assessments in case of city improvements, and sections 2474 and 2475 of the Compiled Laws of 1913, which provide for the assessment of benefits in the case of drains outside of the limits of incorporated cities, and section 2494 of the Compiled Laws of 1913, which provides for the issuance of bonds in such cases are pari materia.

Section 193 of chapter 62 of the Laws of 1905 does not repeal chapter 35 of the Laws of 1903, being section 3743 of the Compiled Laws of 1913. in so far as such section relates to country drainage assessments and to the liens thereof, since the title of said act of 1905 relates merely to incorporated cities, and country property is not mentioned or included therein.

Additional Syllabus by Editorial Staff.

The term “special assessments” in the title and also in the body of Laws 1903, c. 35, relating to local improvements, applies to county drainage taxes and assessments, and to assessments levied in incorporated cities for local improvements. “Special assessments” are merely “special taxes,” and the terms have been quite generally interchanged.

Appeal from District Court, Cass County; Pollock, Judge.

Action by the Murray Bros. & Ward Land Company, a corporation, against Carrol L. Buttles and others. From judgment for defendants, plaintiff appeals. Affirmed.F. G. Kneeland, of Jamestown, for appellant. Engerud, Holt & Frame, of Fargo, for respondents.

BRUCE, J.

This appeal involves a construction of chapter 35 of the Laws of 1903 (section 3743 of the Compiled Laws of 1913) and its application to special assessments or special taxes for drains located in the body of the county and outside of the corporate limits of cities. The act in question reads as follows:

“An act to provide for the lien of special assessments as between vendor and vendee.

Section 1. Special Assessments Shall Become a Lien, When, As between vendor and vendee all special assessments upon real property for local improvements shall become and be a lien upon the real property upon which the same are assessed, from and after the first day of December next, after such assessments shall have been certified and returned to the county auditor, to the amount so certified and returned, and no more.

“Sec. 2. Emergency. There being no law providing when special assessments shall become a lien on real property as between vendor and vendee, this act shall take effect and be in force after its passage and approval.”

The trial court found as its conclusions of law that:

“1. Chapter 35, Laws of 1903, is a general law and refers to local improvements outside as well as within an incorporated city.

2. That the attempted repeal in section 193, chapter 62, Laws of 1905, of all of chapter 35, Laws of 1903, is inoperative in so far as it applies to local improvements outside an incorporated city and in violation of section 61 of the Constitution.

3. That section 4986, Revised Codes of 1905 defining incumbrances, must be read in connection with the living provisions of chapter 35, Laws of 1903, which fixes the date when incumbrances with reference to special assessments become a lien as between vendor and vendee as of December 1st.

4. That since there were no drain assessments due at the time the defendant sold the property in question, the unpaid and unmatured installments of the assessments in question do not constitute a lien or incumbrance upon the property such as were covered by the general warranties found in the deed against incumbrances upon the land.

“5. That defendants are entitled to judgment dismissing the plaintiff's action on its merits and for their costs and disbursements to be taxed by the clerk.”

Practically all of these conclusions are assailed by plaintiff and appellant.

[1] Defendants and respondents contend that chapter 35 of the Laws of 1903 applies to drain taxes outside the limits of incorporated cities, that as to such drains it has never been repealed, and that it should be so interpreted as to make such taxes a lien as between vendor and vendee only as the successive installments become due, that is, on the 1st of December of each year. Plaintiff and appellant contends: (1) That the statute has been specifically repealed; (2) that it never had any application to drain assessments or taxes outside the limits of incorporated cities; (3) that if the statute has or had any application to drain taxes, it makes the total amount assessed a lien on December 1st, following the filing of the special tax list with the county auditor, which, in the case before us, would have been on December 1, 1908, regardless of when the installments became due. Any one of these constructions will result in a reversal of the judgment. It must be presumed that the act of 1903 was enacted with knowledge on the part of the Legislature of the then existing law in relation to special taxes and assessments for drains and other local improvements. 36 Cyc. 1146; Enderlich, Interp. of Stat. § 182. Under the laws then existing (see sections 2792, 2793, 2799, 2801, 2803, and 2804, R. C. 1905) the cost of local city improvements was assessed against the property thereby benefited by a special assessment committee. The assessment was reviewed by the city council, and the assessment list, as finally determined, was filed in the city auditor's office and remained there. The total assessment was divided into installments by the city auditor, payable annually, covering a period of years, for water mains, 10 years, sewers, 20 years, etc. Each year, when certifying to the county auditor the general city tax levy for that year, the city auditor also certified a list of lots assessed for local improvements, and extended against the description of each lot the part of the assessment against such lot falling due December 1st of such year, and no more. The county auditor then extended the amount falling due that year, and “so certified and returned” to him, upon the tax list which he turned over to the county treasurer, and the collection of such special assessments was then made in the same manner as general taxes are collected. This is a procedure which is still in vogue even after the passage of chapter 62 of the Laws of 1905 (chapter 30, R. C. 1905; chapter 44, C. L. 1913), as section 180 of chapter 62 of the Laws of 1905 (section 2818, R. C. 1905 and section 3743, C. L. 1913) is an exact copy of the 1903 statute, although section 193 of the act of 1905 expressly repealed chapter 35 of the Laws of 1903, which formerly contained this provision, also chapter 210 of the Laws of 1903, which related to water systems and special assessments therefor in incorporated cities, and chapter 123 of the Laws of 1899, and chapter 28 of the Political Code of the Revised Codes of 1899 (sections 2108 to 2343, inclusive), and which related entirely to cities and the problems incident to the government and finances thereof.

Now and at the time of the passage of chapter 35 of the Laws of 1903 (section 3743, C. L. 1913) the procedure in relation to assessments against lands which were benefited by drains and which lay outside of the limits of incorporated cities and villages is and was somewhat different. The procedure is outlined by sections 1831, 1832, R. C. 1905, and sections 1457, 1458, R. C. 1899, which are now contained in sections 2474 and 2475 of the Compiled Laws of 1913, and under which statutes the board of drain commissioners assesses these taxes against the lands benefited by the drains and files a list of such taxes with the county auditor who thereupon extends the same upon the tax lists, and collection is then made by the county treasurer. The statute (chapter 39 of the Laws of 1901, section 1849, R. C. 1905, amended by chapter 93 of the Laws of 1907, section 2494, C. L. 1913) provides also that the county commissioners may issue bonds for the cost of the drains for a period not exceeding 15 years (as the law was in 1908), the time of payment, within certain limits, being left to their discretion. When bonds are so issued (and they were issued in the case at bar) the total tax is not put on the tax list for one year, as provided in section 1831, R. C. 1905, but the matter is covered by an act, which provides that:

“Whenever such bonds shall be issued the tax hereinbefore provided for shall not be collected all in one year, but shall be divided into as many parts as such bonds...