State ex rel. City of Fargo v. Wetz

Decision Date14 June 1918
Citation40 N.D. 299,168 N.W. 835
PartiesSTATE ex rel. CITY OF FARGO v. WETZ, City Assessor, et al.
CourtNorth Dakota Supreme Court
Syllabus by the Court.

Chapter 156 of the Session Laws of 1917 construed, and held to provide for the collection of a license tax or fee in lieu of other taxes upon motor vehicles.

Where, at the same session of the Legislature, two bills are passed, one providing for the classification of property generally for purposes of taxation, and the other dealing particularly with a single species of property, which is embraced in the general schedules of the classification act, the conflict in the two bills must be resolved in favor of that which deals particularly with the specific property.

Where two bills are approved by the Governor in the inverse order of their passage, conflicting provisions therein contained cannot be resolved in favor of that which was passed last, on the theory of a repeal by implication.

Sections 176 and 179 of the Constitution, as amended in 1914 (see Laws 1913, c. 103), which provide that “taxes shall be uniform upon the same class of property, including franchises within the territorial limits of the authority levying the tax,” and for the assessment of certain public utility property by the State Board of Equalization, and other “taxable property, * * * in the county, city, township, village or district, * * *” do not require the taxation of all property on an ad valorem basis, and are not violated by a law which provides for the payment of a license fee in lieu of general and local taxes.

Section 176 of the Constitution, as amended in 1914 (see Laws 1913, c. 103), which provides that the “legislative assembly shall, by general law, exempt from taxation * * * personal property to any amount not exceeding in value $200 for each individual liable to taxation,” is not violated by an enactment according to which the owners of a given class of personal property will be compelled to contribute to the cost of maintaining certain governmental functions an amount which will approximately equal a fair property tax if levied upon an ad valorem basis.

Under section 130 of the Constitution, the Legislature is given plenary control over the taxing power of municipalities, and section 179 of the Constitution, as amended in 1914 (see Laws 1913, c. 103), does not give to local taxing districts the constitutional right to retain upon their tax lists all of the property within such districts.

Section 174 of the Constitution, under which the legislative assembly is directed to provide for the “raising of revenue to defray the expenses of the state, not to exceed in any one year four mills on the dollar on the assessed valuation of the taxable property in the state.” is a limitation upon the power of the Legislature to provide state revenues by the taxation of property upon an ad valorem basis. It has no application to revenues derived from other sources and according to some other method.

Following State ex rel. Rush v. Budge, 14 N. D. 532, 105 N. W. 724, and State ex rel. Miller v. Taylor, 27 N. D. 77, 145 N. W. 425, it is held that section 4 of the motor vehicle license act, in conferring upon the Secretary of State unlimited power to employ agents and incur expense. is unconstitutional. as involving an attempted delegation of legislative power.

Where a portion of a law is unconstitutional, the remainder will stand where the court can reasonably say that the Legislature would have passed the act with the invalid portion stricken therefrom.

On Rehearing.

Section 202 of the Constitution of North Dakota, which requires that “if two or more amendments shall be submitted at the same time they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately,” is not violated by submitting as one amendment a proposed change which is expressed in two sections, both, however, relating to one general subject, and designed to accomplish one main purpose.

It is held that the amendments to sections 176 and 179 of the Constitution (see Laws 1913, c. 103), which were submitted to the electors in 1914 as one proposition, relate to the general subject of uniformity of taxation, and that the amendment was legally adopted.

Additional Syllabus by Editorial Staff.

Any payment exacted by the state or its municipal subdivisions as a contribution toward the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax.

Application by the state, on the relation of City of Fargo, for writ of mandamus to John Wetz, Assessor, and others. Writ denied.

Robinson, J., dissenting.Spalding & Shure, of Fargo, for plaintiff. William Langer, Atty. Gen., E. B. Cox, Asst. Atty. Gen., and F. E. Packard, of Bismarck, for defendants. E. T. Burke, of Bismarck, for City of Bismarck.


This is an application for a writ of mandamus which will command the defendant Wetz, as assessor of the city of Fargo, to list, assess, and place upon the tax rolls a certain Packard automobile, No. 33646, owned by one A. L. Moody, a resident and citizen of Fargo, which automobile is kept and used by him in said city; also commanding the assessor to list, assess, and place upon the tax rolls other motor vehicles of other descriptions owned, kept, and used by residents of the city of Fargo, so as to subject the same to taxation for the year 1918 as a part of the taxable personal property subject to the taxing jurisdiction of the city. The order to show cause issued herein is directed to George E. Wallace, H. H. Steele, and F. E. Packard, as members of the State Tax Commission, having supervision of the administration of the tax laws of the state.

In the affidavit and petition it is made to appear that the city commission of the city of Fargo directed the defendant Wetz to assess the property above referred to, and that Wetz refused to do so, basing his refusal upon chapter 156 of the Session Laws of 1917, the same being an act providing for motor vehicle license fees, registration tax, etc. It is shown that the act contains a provision purporting to make the registration fee (excepting for dealers's licenses) a charge which shall be in lieu of all taxes, general and local. It is further alleged as a part of the petition-

“on information and belief, that the revenue which has been and will be derived from the registration with the Secretary of State, and the fee charged therefor, in accordance with the terms and provisions of said legislative act, will exceed by several hundred thousand dollars the expense incident and necessary to the carrying out of the provisions of said legislative act in such registration and in the issuance of licenses thereby provided for, and that by provisions of said act revenue which, under the Constitution of the state of North Dakota, belongs to the villages, cities, counties, etc., is diverted therefrom and from use for the purposes for which such taxation is provided; that said act was passed with knowledge that the revenue derived from its operation would exceed by hundreds of thousands of dollars the cost of operating the department having charge of such registration and licensing and all the expenses incident thereto, and with and for the purposes of diverting any revenue to which such corporations were entitled under the provisions of the Constitution to unconstitutional and illegal purposes, to wit, to the repair and construction of roads in various places in the state of North Dakota, and under the jurisdiction and control and management of a board not provided for by said Constitution, and having no constitutional authority to expend funds so derived.”

It is further alleged that the act in question does not provide for assessing motor vehicles in accordance with their value, but that the fees are based upon arbitrary, inequitable, and unjust distinctions, and that the provisions of the legislative act are not uniform in their operation, but are wholly arbitrary and unjustified. It is alleged that, under the provisions of the act, the city of Fargo would receive no part of the revenue derived from the registration tax, and that the motor vehicles of dealers are subject to assessment and taxation like other personal property, while similar vehicles belonging to others are not so subject.

The answer does not put in issue any facts material to the determination of the questions raised upon the application for the writ.

Section 1 of chapter 156, Session Laws of 1917, provides for the form of application for a dealer's license to be issued upon the payment to the Secretary of State of $15. Among other things, the application is required to contain a statement of “the amount of such motive power, stated in figures of horse power, in accordance with the rating established by the Association of Licensed Automobile Manufacturers. * * *” Section 3, which amends section 2976g of the Compiled Laws of 1913, provides a minimum fee for the re-registration of motor vehicles of not less than $6, and for those having a higher rating than 20 horse power an additional fee of 50 cents for each additional horse power, subject to reduction, however, in the case of vehicles which have been previously licensed for three years. In this section it is provided that “the registration fees imposed by this act upon motor vehicles shall be in lieu of all taxes, general or local, to which motor vehicles may be subject, except that dealers' license fees shall not be in lieu of other taxes.” Section 4, which amends section 2976h, Compiled Laws of 1913, provides: “ * * * The Secretary of State is hereby authorized to employ such agent or agents as may be necessary to enforce the provisions of this act.” Section 5, which amends section 2976n, Compiled Laws of 1913, provides that the moneys derived shall be paid into the state treasury by the Secretary of State, and that the State...

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