State ex rel. Fausett v. Harris

• Decision Date: 13 May 1890
• Citation: 45 N.W. 1101,1 N.D. 190
• Parties: State ex rel. Fausett v. Harris, Auditor, et al.
• Court: North Dakota Supreme Court

1 N.D. 190

45 N.W. 1101

State ex rel.

Fausett

v.Harris, Auditor, et al.

Supreme Court of North Dakota.

May 13, 1890.

Syllabus by the Court.

1. Section 30 of the revenue law, approved March 11, 1890, abolished the office of county assessor, and created the new office of district assessor the instant the statute took effect. The vacancy in said office which the county commissioners are authorized to fill by section 30 is the vacancy existing before the election of any officer to fill the office, as well as a vacancy created after the office has once been filled.

2. Section 10 of the schedule to the constitution, providing that “the county and precinct officers shall hold their offices for the term for which they were elected,” does not prohibit the legislature from abolishing the office of county assessor before the expiration of the term of the county assessor in office when the constitution took effect, the same being a legislative office.

Appeal from district court, Ransom county; W. H. Lauder, Judge.

Writ of mandamus granted the plaintiff, and defendant appeals.Leonard W. Gammons and Austin & Harper, for relator. George W. Goodwin, Atty. Gen., for defendants.

CORLISS, C. J.

A peremptory writ of mandamus having been awarded the relator in the trial court, defendants bring the case before this court by appeal. Relator was county assessor of Ransom county at the time of the adoption of the constitution of this state. His term of office as fixed by the territorial laws would not expire until January, 1891. On the 18th day of April, 1890, the board of county commissioners of Ransom county, claiming to act under the provisions of section 30 of the revenue law, approved March 11, 1890, appointed district assessors for each of the five commissioner districts of that county; and these appointees were about to enter upon the duties of their office when these proceedings were instituted to compel the county auditor and board of county commissioners to furnish relator the necessary books, blanks, etc., to make assessment of property in the county, they having refused to so supply him on proper demand. They seem to justify their refusal on the ground that by the revenue law the office of county assessor was abolished, and that, since the appointment by the board of an assessor for each of the commissioner districts of the county, these assessors are the only officers having any authority under the law to make the assessment that was formerly made by the county assessor. Relator first claims that the revenue law did not contemplate the appointment of any assessor under its provisions before the expiration of his term of office. But was there any such office left to fill after the enactment of that statute? Section 30 of that act provides for the office of district assessor. All counties, and parts of counties, not organized into civil townships, are to be divided into assessor districts, which shall be the same as the commissioner districts of the several counties It was over the territory of the different counties not embraced in any organized civil township that the jurisdiction of the county assessor extended. It swept over all such territory within the county. But under section 30 of the revenue law the same territory is subdivided and placed under the jurisdiction of several assessors, each officer having a separate district, whose boundaries coincide with those of a particular commissioner district. It is therefore obvious that the two offices cannot co-exist. There cannot be two officers each having authority to assess the same property as the basis of the same tax. One officer might be authorized to assess for one tax, and another for a different tax. But the assessment of the county assessor and the assessment of the district assessor are each the basis of all taxes, and thereforeof the same taxes. In cases of difference as to values, and there would be many such cases, which assessment would control? Which would be the valid assessment? Would each be valid in part, and, if so, what part? These inquiries show into what inextricable confusion the collection of the public revenue would be thrown should it be decided that these two necessarily inconsistent offices could co-exist. The office of district assessor, created by the revenue law, displaces the office of county assessor, because the two cannot stand together. But it is said that this portion of the revenue law was not to take effect until after the expiration of the term of office of the county assessors in office when the state was admitted into the Union. By an emergency clause, the act went into operation upon its approval. There is nothing in the language of the act to indicate that the provision relating to the office of district assessor should be held in abeyance until the expiration of the term of office of the county assessors. The act in its full scope became a law upon its approval. It was true that, a new office having been created, no district asessor could have been placed in the office to exercise its functions until after the fall election, had not the statute in express terms provided that boards of county commissioners might by appointment fill any vacancy in the office. We are here met by the argument on the part of the relator that this refers only to such a vacancy as may exist after the office has been once filled by election; and in this connection we are referred to section 1385 of the Compiled Laws, which enumerates the events which cause vacancies in office, and it is urged that this section is a legislative definition of the word “vacancy,” and that the legislature must be presumed to have used it in the sense of this definition when they employed it in the revenue law. How it can be said that that section is a definition of the word it is difficult to understand. Its full scope is the statement of causes which will create vacancy. It does not purport to exclude all other causes. Certainly, the legislature may provide that a vacancy in fact shall, in contemplation of law, be a vacancy to be filled in a manner prescribed. While we hold in mind the statute enumerating the cases in which a vacancy may exist, we must not lose sight of the fact...