Wallace v. The Hughes Electric Co.

• Decision Date: 31 January 1919
• Citation: 171 N.W. 840,41 N.D. 418
• Court: North Dakota Supreme Court

171 N.W. 840

41 N.D. 418

GEORGE E. WALLACE, H. H. Steele, and F. E. Packard, as Members of the Tax Commissioners of the State of North Dakota, Petitioners and Respondents, v. THE HUGHES ELECTRIC COMPANY, R. W. Dutton and C. B. Aasness, and E. A. Hughes, Defendants and Appellants

Supreme Court of North Dakota

January 31, 1919

From an order of the District Court of Burleigh County, Nuessle J.

Reversed.

Reversed.

Newton Dullam, & Young, for appellants.

Commissions such as the tax commission of North Dakota are mere creatures of the statute, and possess no power except what the statute expressly confers upon them. Railroad Comrs. v. Oregon River & Nav. Co. 17 Ore. 85, 2 L.R.A. 195, 19 P. 702; Grand Rapids, Indiana R. Co. v. Michigan R. Commission (Mich.) 150 N.W. 154; Mechem, Pub. Off. § 511.

The tax commission has no power to assess the property of light heat, and power plants. State ex rel. Miller v. Leach, 33 N.D. 513, 157 N.W. 492.

A legislative body cannot inquire into the private affairs of a citizen merely to suit the whims and fancies of the curious, and where it may not inquire it may not compel the attendance of witnesses and punish for their refusal. Kilbourn v. Thompson, 26 L.Ed. 377-387.

The inspection of records must be limited to what is material in ascertaining the knowledge desired. Hale v. Henkel, 201 U.S. 43, 50 L.Ed. 652, 666; Ex parte Brown, 72 Mo. 83, 37 A. R. 426.

If an act of the legislature is so vague and uncertain in its terms as to convey no meaning, or if the means for carrying out its provisions are not adequate or effective, it is incumbent on the courts to declare it void and inoperative. Hilbourn v. St. Paul etc. R. Co. 23 Mont. 229, 58 P. 515; State v. Westside R. Co. 146 Mo. 155, 47 S.W. 959.

The order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment. Hale v. Henkel, 50 L.Ed. 666, supra; Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 154, 41 L.Ed. 667; Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 928.

The courts will not enforce an order which a commission has no authority to make, or which, under the circumstances of the particular case, was unreasonable or unjust. State v. Des Moines etc. R. Co. 87 Iowa 644, 54 N.W. 461; State v. Chicago etc. R. Co. 26 Iowa 304, 53 N.W. 253; Railway Co. v. State, 23 Okla. 931, 100 P. 16; Railway Co. v. Railway Commission, 52 Wash. 360, 28 L.R.A.(N.S.) 1023; State v. Kansas C. R. Co. 47 Kan. 497, 29 P. 208; Nashville, C. & St. L. R. Co. v. State, 137 Ala. 439, 34 So. 401.

William Langer, Attorney General, and Edw. B. Cox, Assistant Attorney General, for respondents.

The supervisory powers, as well as the powers of review and reassessment, as granted to the tax commission, is constitutional. State ex rel. Hessey v. Daniels, 143 Wis. 649; Great Northern R. Co. v. Snohomish County, 48 Wash. 478; People v. Kinney, 124 Mich. 491; Ames v. People, 26 Colo. 83; State ex rel. Brown v. Meyers, 52 Wis. 626; State ex rel. Fawcett v. Harris, 1 N.D. 594, 45 N.W. 1102; Ex parte Corliss, 16 N.D. 470.

As to what powers are conferred by "general supervision." Vantongeran v. Heffern, 5 Dak. 180, 38 N.W. 52; Moore v. Robbins, 96 U.S. 530; Sheply v. Cowan, 91 U.S. 340; Great Northern R. Co. v. Snohomish County, 48 Wash. 478.

An order by a court to produce certain books and papers in a civil action cannot be refused on the ground that it violates the constitutional provisions against unreasonable search and seizures. Adams v. New York, 192 U.S. 585, 48 L.Ed. 575, 24 S.Ct. 372; Consolidated Rendering Co. v. Vermont, 207 U.S. 541; Re Dunn, 9 Mo.App. 255; Cooperative Bldg. & L. Asso. v. State, 156 Ind. 463, 60 N.E. 146; Washington Nat. Bank v. Daily, 166 Ind. 631, 77 N.E. 53; Sante Fe P. R. Co. v. Davison, 149 F. 603; Anti-Kalsomine Co. v. Kent, 79 N.E. 186; Re Moser, 101 N.W. 588; Re Conrades, 85 S.W. 150; People v. Combes, 158 N.Y. 532, 53 N.E. 527; Interstate Commerce Commission v. Brimson, 154 U.S. 447.

The power of the legislature to delegate the right to quasi judicial or administrative bodies to compel witnesses to attend and testify before them has been exercised by almost every state in the union. 40 Cyc. 2156; 10 Ohio S. & C. P. Dec. 574; 8 Ohio N. R. 205; 10 Ohio Dec. Reprint 90; 18 Ohio L. J. 340; 117 S.W. 508.

CHRISTIANSON, J. Mr. Justice BRONSON, who succeeded Judge BRUCE as a member of this court, being disqualified, Judge CRAWFORD of the Tenth Judicial District was called in and sat as a member of the court upon the final disposition of the case. Judge CRAWFORD, ROBINSON, J., concurring. BIRDZELL, J. (dissenting).

OPINION

CHRISTIANSON, J.

This is an appeal from an order of the district court of Burleigh county commanding the appellants, Dutton, Aasness, and Hughes, to appear before the state tax commission and give testimony and produce books and records relating to the value of the property, the earnings, expenses, and general financial condition of the Hughes Electric Company.

The powers and duties of the state tax commission are defined by § 2088, Comp. Laws 1913, as amended by chapter 232, Laws 1917. The statute, so far as now pertinent, is as follows:

"It shall be the duty of the commission and it shall have the power and authority:

"1. To have and exercise general supervision over the administration of the assessment and tax laws of the state, over assessors, town, county and city boards of review and equalization and all other assessing officers in the performance of their duties, to the end that all assessments of property be made relatively just and equal in compliance with the laws of the state.

"2. To confer with, advise and give the necessary instructions and directions to local assessors as to their duties under the laws of the state and to that end call meetings of local assessors of each county to be held at the county seat of such county, for the purpose of receiving necessary instructions from the commission relative to the duties of their office and to the laws governing the assessment and taxation of all classes of property.

"5. To require township, village, city, county and other public officers to report information as to the assessment of property, collection of taxes, receipt from licenses and other sources, the expenditure of public funds for all purposes and such other information as may be needful in the work of the commission in such form and upon such blanks as the commission may prescribe.

"6. To require individuals, copartnerships, companies, associations and corporations to furnish information concerning their actual funds or other debts, current assets and liabilities, value of property, earnings operating and other expenses, taxes and all other facts, which may be needful to enable the commission to ascertain the value and relative burdens borne by all kinds of property in the state.

"7. To summon witnesses to appear and give testimony and to produce records, books, papers and documents relating to any matter which the commission may have authority to investigate or determine.

"8. To cause the deposition of witnesses residing within or without the state or absent therefrom to be taken upon notice to the interested party, if any, in like manner that depositions of witnesses are taken in civil actions in the district court in any matter which the commission may have authority to investigate or determine.

. . . .

"10. To appoint a special assessor and deputies under him and cause to be made in any year a reassessment of all or any real and personal property or either in any assessment district when in the judgment of said commission such reassessment is desirable or necessary to the end that any and all property in such district shall be assessed equally as compared with like property in the county wherein such district is situated. Upon the completion of such reassessment the said assessor shall certify to such assessment and file the same with the county auditor, and the county auditor shall forthwith notify the members of the board of county commissioners who shall meet the first Monday in the following month of the year and then and there hear all grievances and complaints thereon, and proceed to review and equalize such assessments. Thereupon the said assessment shall be filed with the county auditor and such lists shall supersede and be in place of the original assessment made for such year upon such property and the county auditor shall extend and levy against said property so reassessed the taxes thereon for such year according to such reassessment in the same manner as though such list was the original assessment list of such property.

. . . .

"13. To examine carefully into all cases where evasion or violation of the laws for assessment and taxation of property is alleged, complained of, or discovered, and to ascertain wherein existing laws are defective, or are improperly or negligently administered.

"14. To consult and confer with the governor of the state upon the subject of taxation, the administration of the laws in relation thereto, and the progress of the work of the commission, and to furnish the governor from time to time such assistance and information as he may require."

(The omitted subdivisions of the section are not involved in this controversy.)

Section 2089, Comp. Laws 1913, provides: "Oaths to witnesses in any matter under the investigation or consideration of the commission may be administered by the secretary of the commission, or by any member thereof. In case any witness shall fail to obey any summons to appear before said commission, or shall refuse to testify or answer any material question, or to produce records, books, papers, or documents when required to do so, such failure or refusal shall...