State ex rel. Sathre v. Quickstad

• Decision Date: 29 July 1936
• Docket Number: No. 6418.,6418.
• Citation: 66 N.D. 689,268 N.W. 683
• Parties: STATE ex rel. SATHRE, Attorney General, v. QUICKSTAD et al.
• Court: North Dakota Supreme Court

66 N.D. 689

268 N.W. 683

STATE ex rel.

SATHRE, Attorney General,

v.QUICKSTAD et al.

No. 6418.

Supreme Court of North Dakota.

July 29, 1936.

Syllabus by the Court.

1. Where taxes which include those levied by a city are past-due, a portion of such taxes are “due to the city” within the meaning of section 3585, Compiled Laws for 1913.

2. Section 3586, Compiled Laws for 1913, providing that, “the city council shall be judge of the election and qualifications of its own members,” does not divest the courts of jurisdiction under provisions of section 7971, Compiled Laws for 1913, to inquire into the right of an occupant to hold the office of city alderman.

3. Record examined, and it is held, that at the time of election and attempted qualification as alderman of the city of Hettinger, each of the defendants was in arrears in the payment of taxes due to the city, and was ineligible to hold such office. It is further held, that the facts disclosed by the record do not justify the imposition of fines upon the defendants.

Appeal from District Court, Adams County; John C. Lowe, Special Judge.

Quo warranto proceeding by the State of North Dakota, on the relation of P. O. Sathre, Attorney General of the State of North Dakota, against M. P. Quickstad and others. Judgment for relator, and the defendants appeal.

Judgment modified, and as modified, affirmed.J. P. Cain, of Dickinson, and F. M. Jackson, of Hettinger, for appellants.

Jacobsen & Murray, of Mott, for respondent.

MORRIS, Judge.

This is a proceeding in quo warranto to test the right of the defendants to hold their respective offices as aldermen of the city of Hettinger. The defendant Quickstad was elected in 1933, and the defendants Arnold and Graham were elected in 1934. At the time they were elected the defendants were in arrears in the payment of their real or personal property taxes, or both.

The plaintiff contends that the defendants, at the time of their election and attempted qualification, were ineligible to hold their respective offices; that they are still ineligible, and should be ousted. The district court held that the defendants were ineligible and adjudged them guilty of usurping the office of city alderman of the city of Hettinger and ousted them, and further adjudged “that there be imposed on each one of said Defendants a fine in the sum of $100.00, to be collected and paid into the treasury of the state, to the credit of the school fund.” The defendants appeal from a judgment of the district court and demand a trial de novo.

The court found that defendants were ineligible to hold their respective offices because of the following provisions of section 3585 of the Compiled Laws of North Dakota for 1913: “No person shall be eligible to the office of alderman who is not a qualified elector of and resident within the ward for which he is elected; provided, that in cities where aldermen are elected at large, he shall be a qualified elector of and resident within such city, nor shall he be eligible if he is in arrears in the payment of any tax or other liability due to the city.”

[1] The appellants first contend that it was the intent of the Territorial Legislature in the enactment of section 3585 to have it apply only to a tax or other liability due directly to the city, and that under our present system taxes are payable to the county treasurer and are collected by him even though they eventually go to the respective municipalities, and that therefore the defendants' delinquent taxes are not “due to the city” within the meaning of the above statute.

Included in the general tax levied on both the real and personal property of these defendants are certain levies made for the purpose of supporting the city of Hettinger. The county treasurer is a statutory collecting agent. The tax which the defendants owed upon levies made by and for the benefit of the city of Hettinger were taxes due to the city of Hettinger, even though they are collected through a county officer.

[2] It is further contended that the court has no jurisdiction to inquire into the qualifications of the defendants, or the question of usurpation of the office of city alderman, because section 3586 of the Compiled Laws for 1913 vests in the city council exclusive authority to “be judge of the election and qualifications of its own members.”

Section 7971 of the Compiled Laws for 1913, provides that:

“An action may be commenced by the state, or any person who has a special interest in the action, against the parties offending in the following cases:

1. When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authorities of this state:”

This provision appeared as section 534 of the Code of Civil Procedure of 1877, while the provision now known as section 3586 of the Compiled Laws, upon which defendants rely, did not appear in the laws until 1887 (Chapter 73, art. 3, § 6). McQuillin on Municipal Corporations (2d Ed.) vol. 2, § 491, discusses this question as follows: “The adjudications present some conflict as to whether such provisions render the council the final and exclusive judge in determining these matters. Courts have made the question depend upon the charter language and the proper construction to be given to it, and also on the constitution and the general laws of the state respecting contested elections and the proceedings relating to the remedy by quo warranto. Thus a charter provision that the council ‘shall judge of the qualifications, election and return of the members thereof,’ it has been held, does not make the council the final judge, and, hence, the courts may determine the right to the office of councilman on an information in the nature of quo warranto. The jurisdiction of the court remains unless it clearly appears that...