State ex rel. Strutz v. Nelson
| Decision Date | 26 January 1943 |
| Docket Number | 6870. |
| Citation | 7 N.W.2d 735,72 N.D. 402 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The county treasurer in collecting state taxes does not act as the agent of the county but as an individual designated by his official name to collect for the state, and the taxes thus collected are held by him subject to the orders of the state officers authorized to receive them.
2. Where state taxes are collected by a county treasurer and demand is duly made upon him for the same by the state officers authorized to receive them, he can not withhold such taxes and apply them in satisfaction of a claim of the county against the state for prior overpayments made to it.
M W. Duffy, State's Atty., of Cooperstown, for appellant.
Alvin C. Strutz, Atty. Gen., and P. O. Sathre Asst. Atty. Gen., for respondent.
This proceeding in mandamus was brought by the State on the relation of the attorney general to compel the defendant Bert Nelson to pay to the state treasurer certain state taxes collected by Nelson as treasurer of Griggs County.
There is no dispute as to the facts. Griggs County is one of the organized counties within the state of North Dakota. The defendant Bert Nelson is the treasurer of said county. As such, during the month of March, 1942, in the performance of the duty imposed upon him by the statute (§ 2156, Comp. Laws 1913) he collected taxes in the sum of $21,521.46 belonging to the state of North Dakota and as required by the statute (§ 3254, Comp. Laws 1913) he furnished a statement, certified by the county auditor of Griggs County, to the state auditor that he had made such collections. Thereafter, Berta E Baker, the state auditor, pursuant to the statute (§ 3255, Comp. Laws 1913) drew a draft upon the defendant as treasurer of Griggs County for the amount of said taxes so certified and delivered the same to the state treasurer who notified the defendant thereof. § 3256, Comp.Laws 1913. Thereafter the defendant as county treasurer remitted to the state treasurer the sum of $17,843.48 on account of the taxes so certified as above set out and for which draft had been drawn on him by the state auditor, but failed and refused to remit the sum of $3,677.98, the difference between the amount remitted by him and the amount collected during the month of March 1942, as certified to the state auditor. He retained the last mentioned sum at the direction of the county commissioners of Griggs County because of a claim by that county that the state of North Dakota had been overpaid that amount through error and mistake by the several treasurers of said county during the six years last prior thereto and, therefore, the state of North Dakota was owing such amount to Griggs County.
Section 2190, Comp. Laws 1913, provides that all penalties and interest on delinquent taxes (with certain exceptions not here material) collected by the treasurers of the several counties shall become and be the property of the counties wherein they are collected. And it appears that during the six-year period in question through error and mistake as to the provisions of this law the county treasurers of Griggs County had remitted the penalty and interest on delinquent taxes belonging to the state collected by them to the state treasurer in the sum of $3,677.98, which said sum was received and retained by the state treasurer. Upon discovery of the error and mistake whereby the penalties and interest in question had been remitted to the state treasurer, the Board of County Commissioners of Griggs County passed the following resolution:
"Whereas for many years last past this county has through mistake paid to the State of North Dakota penalties and interest collected on the state's share of the general property tax and the amount of penalty and interest thus erroneously paid during the last six years is in the sum of $3,677.98, the County Auditor and the County Treasurer are hereby directed to deduct said sum of $3,677.98 from any future remittances of such general property tax and to remit only the amount actually due the state."
It was pursuant to this resolution that the defendant Nelson failed and refused to remit the moneys which the state now seeks to have him pay in this proceeding.
The case came to trial before the district court of Griggs County. After a consideration of the facts the court ordered judgment awarding the writ as applied for by the plaintiff. Judgment was entered accordingly. Whereupon the defendant perfected the instant appeal.
On this appeal the defendant contends, as he did in the district court, that since the county has paid to the state through error and mistake moneys to which the state was not entitled, there is an implied contract on the part of the state to repay such moneys and therefore suit may be brought by the county to recover the same. Accordingly, defendant contends that in an action brought by the state to recover taxes collected by him and due to the state-and that, in effect, the present proceeding is such-the county is entitled to a set-off and credit in the amount of the overpayments made to the state. On the other hand, plaintiff contends that though the county may be entitled to recover the moneys from the state it can do so only after presentation of the claim to the proper state authority and refusal to allow the same and that if and when a judgment for the amount of such claim is recovered by the county it can be paid only through legislative appropriation.
Thus it appears that the only question to be determined in this case is as to the right of the defendant Nelson to retain out of the tax moneys collected as above set out for and on account of the state and belonging to the state the amount of the payments of penalty and interest mistakenly paid to the state.
The rights and duties of the state, the counties and the county treasurers with respect to tax moneys belonging to the state collected by the treasurers were considered and determined in the case of State of North Dakota v. Grand Forks County, 71 N.D. 355, 300 N.W. 827, 830. There the state brought an action to recover from Grand Forks County...
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