State v. Rasmusson
| Decision Date | 06 September 1941 |
| Docket Number | 6731 |
| Citation | 300 N.W. 25,71 N.D. 267 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 1, 1941, Reported at 71 N.D. 267 at 272.
On Petition for Rehearing.
Syllabus by the Court.
1. Rights of purchasers of bonds of school districts are subject to the provisions of statutes, in effect at the time of the issuance of the bonds, relating to detachment of territory from school districts, organization of new school districts and the equalization of property, funds on hand and debts between school districts which have been affected by a change in boundaries.
2. Where territory is detached from one school district and organized into a new school district, the tax levies made by the old district for debt service do not follow the detached territory except insofar as the same may be relevied by an arbitration board under the provisions of section 1328 Compiled Laws of 1913.
Appeal from District Court, Cavalier County; W. J. Kneeshaw, Judge.
Mandamus proceeding by the State of North Dakota against Otto Rasmusson, as County Auditor of Cavalier County, North Dakota, to command the defendant to levy and extend against certain property taxes to pay school district's bond issue in full. From a judgment that the alternative writ be quashed and that the proceeding be dismissed, the State appeals.
Judgment affirmed.
Alvin C. Strutz, Attorney General, and C. E. Brace, Assistant Attorney General, for appellant.
The Law at the time of issuance and sale of bonds is part of the contract. State ex rel. Clerveringa v. Klein, 63 ND 514, 249 NW 118, 86 ALR 1523.
Compliance with a requirement that before bonds are issued, provision must be made for their payment or redemption is necessary to make the bonds valid. McQuillin, Municipal Corporations, 2d ed § 2450.
Mandamus is the proper remedy to compel school district officers to levy taxes to pay bonds legally issued. Independent School Dist. v. Exchange Nat. Co. 164 Okla 176, 23 P.2d 210; Coler v. Coppin, 10 ND 86, 85 NW 988; 6 McQuillin, Municipal Corporations, 2d ed 347, § 2536.
A town, having failed to levy taxes on basis of full value of property necessary for payment of bonds, may be required in bondholder's suit to levy and collect a tax for back years. Samson v. Perry, 17 F.2d 1; Perry v. Samson, 17 F.2d 655; Miners Merchants Bank v. Herron, 46 Ariz 71, 47 P.2d 430.
Granting mandamus requiring single tax levy to pay overdue coupons cut from city's bonds held not plain abuse of discretion. Victor V. Halstead, 84 Colo 450, 271 P 185.
Where the power is present to issue bonds, the obligation to levy the tax is conclusively implied unless the law which confers the authority or some general law in force at the time clearly manifests a contrary legislative intent. State ex rel. Supreme Forest Woodmen Circle v. Snow, 113 Fla 241, 151 So 393; Broward County v. State, 111 Fla 139, 151 So 699; State ex rel. Gillespie v. Bay County, 112 Fla 687, 151 So 10.
Price & Price, for respondent.
Mandamus will not lie to control the action of an officer whenever such action is discretionary in its nature, even to the interpretation of a statute. 38 CJ 596, 689; Marcum v. Ballot Comrs. 36 LRA 296; Conrad v. Langer, 68 ND 167, 277 NW 504.
The principle is well settled that whenever the act requires the exercise of discretion mandamus will not lie. Vincent v. Ellis, 116 Iowa 609, 88 NW 836.
Mandamus only lies to enforce a ministerial duty imposed expressly by law, involving no discretion in its exercise, but mandatory and imperative. 18 RCL 116.
The purpose of the writ of mandamus is not to establish a legal right, but to enforce one which has been already established and the right to its performance must be so clear as not to admit of any reasonable doubt or controversy. 38 CJ 582.
The taxpayer is entitled to notice of the taxes assessed against his property and to an opportunity to pay them. 61 CJ 958; Gould v. Sullivan, 84 Wis 659, 54 NW 1013.
Equity has no power to levy a tax or make an assessment, and there is no other than the statutory procedure recognized by the law by which the share of the public burden to be borne by any citizen can be determined. Powers v. Larabee, 2 ND 141, 49 NW 724; O'Neil v. Tyler, 3 ND 47, 53 NW 434.
A lien upon real estate exists for the purpose of collecting taxes levied thereon. Barber v. Evans, 27 Minn 92, 6 NW 445; Jacobs v. Union Trust Co. 155 Mich. 233, 118 NW 921.
The expiration of the year during which the levy is expressly directed to be made ends the authority to make it. Wells v. Commissioners, 20 LRA 89; Barber Asphalt Paving Co. v. Des Moines, 191 Iowa 762, 183 NW 456.
The writ of mandamus will not issue if its issuance will injuriously affect the rights of persons not a party to the proceedings. 18 RCL 139; Board of Directors v. Board of Excise (Okla) 122 P 520; Sheffield v. Fountain (Okla) 224 P 339.
In April, 1920, Byron School District of Cavalier county offered to sell its bonds in the sum of $ 35,000 to the state of North Dakota as an investment for the permanent school funds. As a part of the offer the district filed a transcript of the proceedings by which the bond issue was authorized and a description of the territory comprising the district. At the time the offer was made Byron School District consisted of forty-five sections. The offer was accepted on April 22, 1920, subject to the approval of the attorney general which was given on October 7, 1920. During the summer of 1920, statutory proceedings by which twelve sections were detached from Byron District were completed. The detached portion was organized into a new school district which was called McLean School District. An Arbitration Board was then formed pursuant to the provisions of § 1327, Comp. Laws 1913 to "effect an equalization of property, funds on hand and debts" between Byron District as reorganized and the new McLean District. Although the sale of the bonds authorized by Byron District, as originally constituted, had not been consummated, the bond issue was treated as a debt of the District by the Arbitration Board and it made its order with respect to this bond issue as follows: "It is ordered that Byron School District be allowed to retain the moneys received by the sale of bonds in the amount of $ 35,000 and assume full payment of principal and interest thereon." Subsequently the sale of the bonds was completed and Byron District received a portion of the proceeds thereof in 1921 and a portion in 1922.
At the time of the authorization of this bond issue, the governing board of Byron District had by resolution levied taxes for the payment of the bonds as follows: "There is hereby levied for the years 1920 to 1940, both inclusive, an annual tax upon all taxable property subject to taxation in said district, as follows: Fourteen hundred ($ 1,400) for the payment of annual interest and seventeen hundred and fifty ($ 1,750) dollars to create a sinking fund with which to pay the principal of said bonds when due." Before this levy was spread for the first time the detachment proceedings had been completed and the full amount of the levy for the year 1920 and each subsequent year up to and including 1939 was extended against the taxable property remaining in Byron District after the detachment and organization of McLean District. In December, 1939, total taxes sufficient to pay the entire bond issue, both principal and interest, had been levied upon and extended against the taxable property of Byron District. A considerable portion of these taxes remained uncollected and it was then apparent that the amount which would be realized from the taxes levied and extended would not be sufficient to pay the bonds in full when they became due on June 1, 1940.
In December, 1939, the state commenced this proceeding in the District Court of Cavalier county by petitioning for a writ of mandamus commanding the county auditor of Cavalier county "to levy and extend against" the property detached from Byron District in 1920 "for each of the years 1920 to 1939, inclusive, the levy for each year to be the proportion of said levy of $ 1,400 for annual interest and of $ 1,750 for sinking fund . . . which the assessed value of said premises for each of said years bears to the total assessed value" of all the property in Byron District as originally constituted. Upon the filing of this petition the court directed the issuance of an alternative writ commanding the county auditor to make the levy or show cause why he should not make it. The auditor filed a return to the writ and on August 28, 1940, after a trial of the issues, the court entered judgment that the alternative writ be...
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