State ex rel. Arnot v. Flaherty
| Decision Date | 22 June 1920 |
| Citation | 178 N.W. 790,45 N.D. 549 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh County, Nuessle, J.
Defendant appeals from an order overruling a demurrer to the complaint.
Reversed.
Reversed and remanded, with directions.
Edward S. Allen, State's Attorney for Burleigh County, and Joseph Coghlan, for appellant.
The intention of the legislature must be ascertained and given effect in construing statutes. State ex rel. Langer v Kositzky, 31 N.D. 623.
The object of all statutory interpretation and construction is to ascertain and give effect to the legislative intention. State ex rel. Linde v. Taylor, 33 N.D. 98; Power v Hamilton, 22 N.D. 179.
Entire statute considered as well as title in construing legislative intent. Granger v. Lorenzen, 28 S.D. 295; Cass County v. Nixon, 35 N.D. 605.
The rule is well established that an attempt must be made to give effect to the intention of the legislature if a law is doubtful. Murray Bros. v. Buttler, 32 N.D. 571; State v. Stockwell, 23 N.D. 97.
H. F O'Hare, for respondent.
Some statutes relating to particular matters are construed to include a county within the term "municipalities." Herman v. Essex Co. 71 N.J.Eq. 541, 64 A. 742, affirmed in 73 N.J.Eq. 415, 417, 75 A. 1101.
And some statutes relating to "counties" have been held to include cities, either in a political (Wayne County v. Detroit, 17 Mich. 390; O'Brien v. Vulcan Iron Works, 7 Mo.App. 257); or geographical sense (Dominion Iron, etc. Co. v. Sydney, 37 N. S. 495); while other statutes are held not to include cities within the term "county" or "counties." Camp's Appeal, 80 Conn. 272, 68 A. 444; Thompson v. Peru, 29 Ind. 305; Aurora v. West, 9 Ind. 74.
And in case of doubt as to the construction of either the statute or contract, that construction will be preferred by which no impairment will result. Texas etc. R. Co. v. Wells-Fargo Exp. Co. 101 Tex. 564, 110 S.W. 38, affirming (Tex. Civ. App.), 108 S.W. 172 and see statutes (36 Cyc. 1103).
This is an appeal from an order entered by the district court of Burleigh county overruling a demurrer to plaintiff's complaint. The action is one to enjoin the county auditor from reducing the tax levy made by the city of Bismarck for the fiscal year commencing September 1, 1919. The complaint alleges that the defendant county auditor, under and by virtue of the authority purported to be conferred upon him by chapter 61, Laws, Special Session, 1919, is about to, and unless restrained from so doing, will "cut down and reduce the tax levy made by the city of Bismarck for said fiscal year. The complaint further avers that said chapter 61 is "retroactive and ex post facto in effect, and unconstitutional and void." In other words, the action is one to restrain the defendant county auditor from performing the duties enjoined upon him by said chapter 61, on the ground that said chapter is unconstitutional.
At the regular session in 1919 the legislature enacted chapter 214, Laws 1919, which provides for the limitation of tax levies and debt limits in counties and political subdivisions thereof. The first two sections of the chapter read:
At the special session convened in November, 1919, chapter 214 was amended and re-enacted as chapter 61 of the laws of such special session. As so amended and re-enacted the two above-quoted sections read:
The act also contained the following provisions:
The plaintiff contends that chapter 214 was not applicable to cities. The respondent, on the other hand, contends that though the language does not in fact include cities, nevertheless the legislature intended that the act should apply to cities. In other words, it is contended that the legislature, in speaking of political subdivisions of counties, meant to include cities. The respondent admits, however, that chapter 61 of the laws adopted at the special session is applicable to cities, but he contends that the law is unconstitutional as so applied.
We do not find it necessary in this action to determine whether chapter 214 as originally adopted applied to cities. The chapter as amended by chapter 61 of the laws adopted by the special session clearly does, and it has not been shown, and the complaint of the plaintiff wholly fails to show, wherein this latter statute, in any manner, contravenes any constitutional provision. That the legislature has power to legislate with respect to the subject, and to accomplish the object sought to be accomplished by chapter 214, Laws 1919, we have no doubt. Similar legislation was construed and sustained by this court in Great Northern R. Co. v. Duncan, 42 N.D. 346, 176 N.W. 992. It is true the legislation there construed was prospective in its operation, whereas chap. 61, Laws, Special Session, 1919, by its terms is retroactive. But a law is not necessarily invalid because it is retroactive. Such law is invalid only if it violates the constitutional guarantees that no bill of attainder, ex post facto law, or law impairing the obligations of contract, shall ever be passed. U.S. Const. art. 1, § 10; N.D. Const. § 16. Unless violative of some right guaranteed by the state or Federal Constitution, tax laws may be given a retroactive effect. 25 R. C. L. p. 795; McQuillin, Mun. Corp. § 709.
The complaint in this case sets forth no facts which justify the inference that chapter 61, Laws, Special Session, 1919, impairs any contract obligations. We cannot assume that it will have that effect. The presumption is, it will not. The question whether a law impairs the obligations of a contract will be considered and determined only when it is necessarily involved, and raised by one who has an interest in the determination thereof. Mohall Farmers' Elevator Co. v. Hall, 44 N.D. 430, 176 N.W. 131.
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