State ex rel. Strutz v. Huber, 6650.

• Decision Date: 01 April 1940
• Docket Number: No. 6650.,6650.
• Citation: 69 N.D. 788,291 N.W. 126
• Parties: STATE ex rel. STRUTZ, Atty. Gen., v. HUBER, County Auditor.
• Court: North Dakota Supreme Court

69 N.D. 788

291 N.W. 126

STATE ex rel.STRUTZ, Atty. Gen.,

v.HUBER, County Auditor.

No. 6650.

Supreme Court of North Dakota.

Feb. 29, 1940.

On Rehearing April 1, 1940.

Syllabus by the Court.

1. The duties of the county auditor in calculating the rate per cent of tax levies and in spreading and extending the tax charges on the tax lists against real property subject to taxation pursuant to the provisions of the Initiated Measure, adopted June 29, 1932 (Session Laws 1933, p. 493), section 2143, Comp.Laws 1913 and chapter 241, Session Laws 1929, are ministerial and their performance may be compelled by mandamus.

2. Chapter 225, Session Laws 1939, entitled “An act declaring all tax charges based on original final values of property assessed by local assessors, in excess of amount that would have been charged had said original final value been limited to the full and true value in money, null and void providing remedy to the taxpayer; and repealing all laws or parts of laws in conflict therewith,” is considered and construed, and it is held, for reasons stated in the opinion, that said chapter 225 does not modify or repeal the provisions of the Initiated Measure adopted June 29, 1932 (Session Laws 1933, p. 493), section 2143, Comp.Laws 1913, and chapter 241, Session Laws 1929.

Appeal from District Court, Grant County; H. L. Berry, Judge.

Mandamus proceeding by the State of North Dakota, on the relation of Alvin C. Strutz, Attorney General, against A. J. Huber, Auditor of Grant County, N. D., to compel him to calculate the rate per cent. necessary to raise the amount required to meet various taxes levied by the state and local taxing boards on the assessed valuation of farm lands in the county as determined by the State Board of Equalization, and to extend and spread the taxes against all farm lands in the County of Grant on the assessed valuation thereof as determined by the State Board of Equalization, and to deliver the tax list to the county treasurer for collection of the taxes. From a judgment denying the writ, the petitioner appeals.

Judgment reversed, and case remanded for further proceedings.

Alvin C. Strutz, Atty. Gen., and C. F. Kelsch, Asst. Atty. Gen., for petitioner.

John F. Sullivan and W. H. Stutsman, both of Mandan, and Emil Giese, State's Atty., of Carson, for respondent.

NUESSLE, Chief Justice.

The State of North Dakota through its attorney general seeks in this proceeding to compel the respondent Huber, auditor of Grant County, to “1. Calculate the rate per cent necessary to raise the amount required to meet the various taxes levied by the State and local taxing boards on the assessed valuation of farm lands in said County as determined by the State Board of Equalization.” and to “2. Extend and spread the taxes against all farm lands, in the County of Grant upon the assessed valuation thereof as determined by the State Board of Equalization; and that as soon as he has completed said tax list that he shall deliver the same to the County Treasurer for the collection of such taxes as required by law.” To this end the relator presented his petition supported by affidavit to the District Court of the Sixth Judicial District and procured an order directed to the respondent to show cause why a peremptory writ of mandamus requiring him to do so should not issue. The respondent challenged the legal sufficiency of the petition by demurrer and motion to quash, and further set up the facts upon which he relied as warranting the denial of the relator's petition. The court considered the issues as made and presented by the pleadings and denied the application. Judgment was entered accordingly. Whereupon the relator perfected the instant appeal.

There is no dispute as to the facts, which may be stated substantially as follows: The taxable property of Grant County was duly asssessed and equalized in the several taxing districts thereof. In due course, and in conformity with the requirements of the statute, such assessments were equalized by the board of county commissioners sitting as a board of equalization. Section 2138, Comp.Laws 1913. The average value of farm and ranch lands was by this board fixed at $3.75 per acre. The respondent county auditor certified the list of property thus assessed and equalized to the state board of equalization. Section 2138, Comp.Laws 1913. See, also, section 2092a5, 1925 Supplement to the 1913 Compiled Laws. The state board, taking into account the value of said property so assessed in and returned to it from Grant County, together with the values of the property assessed and returned in like manner from other counties in the state, equalized the same as between the counties and fixed the average value of the farm and ranch lands in Grant County at $7.50 per acre. Section 2141a2, 1925 Supplement. The report of the proceedings of the state board of equalization affecting the taxable property in Grant County was duly certified and returned to the respondent. Section 2142, Comp.Laws 1913. In the meantime, and before the respondent had calculated the rate per cent necessary to raise the amounts required for the several taxing districts and extended and spread the taxes against the lands in Grant County on the valuations as determined by the state board of equalization (see section 2143, Comp.Laws 1913, and chapter 241, Session Laws 1929), various individual owners of real property in Grant County, together with the several taxing districts therein, presented their respective petitions to the board of county commissioners seeking to have the said real property revalued and their excessive taxes abated pursuant to the provisions of chapter 225, Session Laws 1939. The board of county commissioners, taking cognizance of said petitions, ordered and directed the respondent not to calculate the rate per cent of taxes and not to extend and spread the same against the farm lands upon the valuations thereof as fixed by the state board of equalization, and proceeded to consider the said petitions and redetermine the values of the said real property. They found that the values as fixed by the state board of equalization were excessive, reduced the same to an average of $3.75 per acre, and ordered and directed the respondent to calculate the rate per cent of taxes on the values as thus reduced and to extend and spread the same at the rate thus calculated against farm lands on the values as redetermined by the board of county commissioners acting upon and under the petitions.

Thus the question for determination is as to the duty of the county auditor with respect to the calculation, spreading and extending of real estate taxes under the circumstances shown. On the one hand, the relator contends that it is the duty of the respondent to comply with the requirements of the Initiated Measure, adopted June 29, 1932 (Session Laws 1933, p. 493), section 2143, Comp.Laws 1913, and chapter 241, Session Laws 1929, and that he has not done so. On the other hand, the respondent contends that these statutory provisions are in effect so modified or repealed by the provisions of chapter 225, Session Laws 1939, that he need no longer comply with them under the circumstances in this particular case, but must accept the valuations as redetermined by the board of county commissioners and calculate the rate per cent of the various taxes and extend and spread the same so calculated, together with the state tax against farm lands, upon the valuations as thus fixed.

[1] The duties of the respondent county auditor with respect to the matters here involved are purely ministerial. He has no discretion in the matter. See Murray v. Mutschelknaus, N.D., 291 N.W. 118, just decided. If he fails to perform them mandamus is the proper remedy to invoke as against him. Section 8457, Comp.Laws 1913. The fact that the board of county commissioners has directed him to do otherwise is no excuse. The statute controls. Their action can not override it. Section 173, Constitution. So it becomes necessary to consider and construe the provisions of chapter 225, Session Laws 1939.

Chapter 225 is entitled “An act declaring all tax charges based on original final values of property assessed by local assessors, in excess of amount that would have been charged had said original final value been limited to...