State ex rel. Mitchell v. Mayo
| Decision Date | 01 June 1906 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Application by the state, on the relation of Charles H. Mitchell, for writ of mandamus to M. S. Mayo, treasurer of Cass county. Judgment for relator, and defendant appeals. Reversed.
Reversed.
Barnett & Richardson, for appellant.
Seth Newman, for respondent.
This is a proceeding by mandamus, brought in the name of the state, by the relator, as treasurer of the city of Fargo, to compel the defendant, as treasurer of Cass county, to pay over to the relator the amount of interest and penalties on the city and city school taxes, collected for said city by the defendant. The relator bases his right to the relief demanded upon section 124 of chapter 62, p. 122, Laws of 1905. That section reads as follows: Chapter 62, p. 91, Laws 1905, of which the section quoted is a part, is entitled "An act for the organization and government of cities and to provide for the limitation of action to vacate special assessments heretofore made." It was approved February 28, 1905, and, by virtue of an emergency clause, took effect immediately upon its approval. The defendant admits that he collected and refused to pay over the interest and penalties in question, but denies that the relator is entitled thereto for several reasons, only two of which we deem it necessary to discuss. These two propositions are: First, that chapter 62, p. 91, Laws 1905, does not become operative upon the city of Fargo until its inhabitants adopt its provisions by reorganizing under this law; second, that section 124, so far as it purports to give the interest and penalties on city and city school taxes to the city, is unconstitutional. The trial court heard the evidence submitted and awarded a peremptory writ of mandamus as prayed for by relator. The defendant appealed from the judgment. A statement of the case was settled, wherein the appellant demanded a new trial of all issues, and also specified certain alleged errors of law. A question arose on the argument, as to whether this court should try the case anew, under section 5630 (Rev. Codes 1899), or review it on the specifications of error. It is unnecessary to decide that question, because the propositions which we deem decisive of the case are such that they appear upon the face of the judgment roll without any statement of the case. The facts are not in dispute. It is simply a question as to whether the facts alleged and found entitle the relator to a peremptory writ of mandamus.
We shall take up the defendant's propositions in the order above stated. The appellant's argument is that chapter 62 is wholly a new law for the organization and government of cities; that is, to take effect only when the inhabitants of a previously organized village or city shall see fit to organize under it. They contend that cities organized under the general law of 1887 continued under that law until they elected to abandon that form of organization and reorganize under the new law of 1905. Such a construction of this law is wholly untenable. A bare inspection of its provisions discloses that it is a mere revision and amendment of the general law heretofore in force relating to the organization and government of cities. That law was first enacted in 1887, as chapter 73, p. 190, Laws 1887. It was incorporated in the Revised Codes of 1895 as chapter 28 of the Political Code. A few changes were made by that revision, and there have been several amendments since. Comparison of the act of 1905 with the law theretofore in force discloses that the new act repeals all former laws on the subject and re-enacts them with some changes, most of which are in minor particulars. The most important changes made are in relation to the procedure in levying and collecting special assessments for local improvements. In all its main features the general law relating to the organization and government of cities remains the same as it was before. The new act has corrected many inconsistencies and defects apparent in the former law, and has brought together and made into a single statute the original city organization act and all subsequent amendments, including those made by the legislature of 1905. The title of the law would have been more appropriate if it had been styled "An act revising and amending chapter 28 of the Political Code as amended since 1895." The law embodied in the act is new only to the extent that it changes the law formerly existing. To the extent that it re-enacts the provisions of the former law, it is a mere continuation of those provisions. Lumber Co. v. Lee, 7 N.D. 135, 73 N.W. 430; City of Fargo v. Ross, 11 N.D. 369, 92 N.W. 449. That this was the intent of the legislature is stated in express terms in section 192 of the act.
Fargo is a city organized under the general law, and hence the revision of that law is operative on the city without any action by the municipality. The relator is entitled to the relief prayed for, unless the provisions of section 124 contravene some constitutional limitation. Under the laws of this state, the collection of all taxes, including special assessments for local improvements in cities, is committed to the officers of the county in which the property taxed is situated. The taxes levied by the several cities, villages townships and school districts are reported to the county auditor, who enters them upon the tax lists together with the state and county taxes. The county treasurer is charged with the duty of collecting all the taxes so listed. For the purpose of collection, the aggregate of the items of each year's tax charged against any person or corporation, if the tax is on personal property, or against each description of land, if the tax is on real estate, is treated as a single entire demand, payable as such at a specified time. Certain interest and penalties for nonpayment are imposed and are fixed at a certain per cent. of the total amount of the taxes so listed, treated as a single demand, and are, of course, collected with and as part of the taxes proper. For the purpose of collection they are, indeed, part of the tax. Railway Co. v. Amrine, 10 Kan. 318; Burlington v. Railway Co., 41 Iowa 134. Although the interest and penalties are properly treated as part of the...
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