Murray v. Mutschelknaus

• Decision Date: 01 April 1940
• Docket Number: No. 6648.,6648.
• Citation: 70 N.D. 1,291 N.W. 118
• Parties: MURRAY v. MUTSCHELKNAUS et al. (STATE et al., Intervenors).
• Court: North Dakota Supreme Court

70 N.D. 1

291 N.W. 118

MURRAY

v.MUTSCHELKNAUS et al. (STATE et al., Intervenors).

No. 6648.

Supreme Court of North Dakota.

Feb. 24, 1940.

On Rehearing April 1, 1940.

On Rehearing.

Syllabus by the Court.

1. An assessment becomes final within the contemplation of Section 2, Chapter 225, Session Laws N.D.1939, when the State Board of Equalization causes an abstract of its proceedings to be certified to the county auditor pursuant to the provisions of Section 2142, Compiled Laws N.D.1913.

2. The period for instituting proceedings under Chapter 225, Session Laws N.D.1939, is limited to one year from the date of certification by the State Board of Equalization to the county auditor.

3. It is presumed that the legislature intends a statute to operate prospectively only unless it clearly manifests a contrary intention.

4. Where a statute is susceptible of two constructions by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided it is the duty of courts to adopt the latter construction.

5. Chapter 225, Session Laws N.D.1939, is construed to operate prospectively and to apply only to tax assessments made subsequent to the effective date of the act.

Appeal from District Court, Hettinger County; R. G. McFarland, Special Judge.

Proceeding by J. K. Murray against Fred Mutschelknaus and others, County Commissioners of Hettinger County, and others, for a redetermination of tax charges against realty, wherein the State of North Dakota, doing business as the Bank of North Dakota, and another intervened. The Board of County Commissioners rendered a decision holding that it had no jurisdiction, and the petitioner appealed to the District Court. From an adverse judgment of the District Court, the petitioner and defendants appeal.

Judgment reversed in part and affirmed in part.

John F. Sullivan, of Mandan, Murray & Murray, of Bismarck, and Horace C. Young, of Fargo, for petitioner and appellant.

C. F. Kelsch, Asst. Atty. Gen., for defendants and appellants.

Robert A. Birdzell and T. A. Thompson, both of Bismarck, for intervenors and appellants.

MORRIS, Judge.

This case involves a proceeding brought under Chapter 225, Session Laws N.D.1939. The plaintiff is, and has been since prior to 1929, the owner or mortgagee of certain real estate in Hettinger County, North Dakota. On July 7, 1939, the plaintiff filed a petition with the Board of County Commissioners, under the provisions of Chapter 225, wherein he sought a re-determination of any and all tax charges against this real estate for the years 1929 to 1939, inclusive, and asked that the tax charges be made to conform to the amount that would ultimately result from a reduction of the valuation of said real estate to the true value thereof in money. The Board of County Commissioners rendered a decision holding that it had no jurisdiction to determine tax charges or values for the years 1929 to 1937, inclusive, and that as to the year 1939 the petition was premature. They considered the petition with reference to the tax charges for the year 1938 and determined them to be the same as had been fixed by the assessors and boards of equalization, and denied to the plaintiff any reduction in valuation or tax charges for the year 1938.

The plaintiff appealed from the decision of the Board of County Commissioners to the District Court of Hettinger County. After a trial, at which both questions of law and fact were presented to the District Court, judgment was rendered upon the Court's findings of fact and conclusions at law. The determination and order of the Board of County Commissioners was affirmed except as to the valuations and tax charges for the year 1938. As to that year, the Court redetermined the extent to which each of the properties of the plaintiff could be lawfully charged with taxes, fixed the true value of these properties in money, and determined the tax charge that might be placed upon said properties for the year 1938. These valuations and charges were much less than those that had been determined for that year in the process of tax assessment and equalization.

The plaintiff appeals. He approves the findings of fact, but challenges the correctness of the trial court's conclusions of law to the effect that no relief could be granted under the statute with respect to the years 1929 to 1937, inclusive. The plaintiff contends that the Court should have re-determined the valuations and tax charges upon his lands for all of those years, and that in failing to do so the Court has erred.

The defendants also appeal from the judgment. They challenge the sufficiency of the evidence to warrant the Court in finding the values which he determined to be the true values in money of the property herein involved for the year 1938. They controvert the construction of the statute under which the trial court applied it to the 1938 valuations as being retroactive and assert that the statute is unconstitutional because it violates Sections 10, 13, 20, 69 and 176 of the Constitution of the State of North Dakota.

Besides the plaintiff, who is the owner of the land involved, and the defendants who are county officers of Hettinger County, the parties also include two intervenors. The State of North Dakota, doing business as the Bank of North Dakota, has intervened and contends that it has an interest in the determination of the questions involved in the controversy because it holds general obligation bonds and registered warrants of the county, registered warrants of school districts in which some of the land is situated, and certificates of indebtedness of the State of North Dakota. Nick Reinert has also intervened. He is a real estate taxpayer of the county who has paid his taxes upon lands in the county, based upon the assessed valuations previously fixed by the taxing officials and boards of equalization for the same years for which the plaintiff now seeks to have his valuations and tax charges reduced.

The contentions of the parties disclose two major controversies. The first relates to the construction of the statute; the second involves its constitutionality. We will first consider the contentions pertaining to construction.

Section 1, of Chapter 225, Session Laws N.D.1939, declares that all taxes based on valuations in excess of the full and true value of taxable property are void to the extent of the excess. Section 2 determines who may seek redress under the act, and with respect to the time within which proceedings may be brought, says: “each individual property owner, and each person having an interest in taxable property valued by local assessors, either individually, or jointly, or collectively, including taxing districts as such, may within one year after any assessment becomes final, bring such proceedings as are herein provided for,”.

Section 3 sets forth the procedure for applying and for determining whether or not relief shall be granted. It places upon the Board of County Commissioners the duty and vests in them jurisdiction to hear and determine the petition “and to make a finding of the then full and true value of said property in money”. If the petition requires the determination of tax charges, it is also made the duty of the Board of County Commissioners to determine the amount of the tax. This is determined by applying, to the full and true value of the property, the consolidated levy of the taxing district for each year set forth in the petition. It is then made the duty of the County Treasurer, upon receipt of the determination of the amount of the tax by the County Commissioners, to issue a tax receipt upon payment of the amount so fixed. Section 4 provides that the failure of the petitioner to appear before the Board of Equalization or pursue other remedies for the reduction of the assessed valuation of his property, shall not preclude him from having the petition heard and determined under the act. Section 5 provides for an appeal to the District Court. The Court is required to try the issues de novo, and it is made the duty of the Court to fix and determine “the proper and legal tax charges for any year or years as may be involved in said petition”. Section 6 provides for an appeal to, and trial de novo in, the Supreme Court.

According to the arguments presented, three constructions are possible with respect to the prospective or retrospective application of this law. The petitioner contends that it applies not only to present and future taxes, but to all taxes levied heretofore and upon which title has not been passed through the issuance of a tax deed and a judgment quieting title thereon. The District Court laid emphasis on the provision of the act which states that a petitioner who comes within other terms of the act “may within one year after any assessment becomes final, bring such proceedings as are herein provided for,”. With respect to the facts in this case, the Court held that the assessment became final when the State Board of Equalization fixed the same and certified it to the County Auditor of Hettinger County. This is done in August of each year. The petition in this case was filed with the Board of County Commissioners on, or about, the 7th day of July, 1939. Within one year prior to that date the State Board of Equalization had equalized and certified the assessments for the year 1938. It had not yet acted upon the assessments for the year 1939. The Court, having in mind the one year provision above quoted, held that the County Board had no jurisdiction to consider assessments for years prior to 1938 and that as to the year 1939 the application was premature since the assessment for that year had not yet become final through the action of the State Board of Equalization. As to the assessments for the year 1938, the Court held that the petition was filed within proper time and that the Board of County Commissioners of Hettinger County had jurisdiction in the first...