Wells County v. McHenry

• Citation: 74 N.W. 241,7 N.D. 246
• Decision Date: 31 January 1898
• Court: United States State Supreme Court of North Dakota

74 N.W. 241

7 N.D. 246

WELLS COUNTY v. E. H. MCHENRY, et al

Supreme Court of North Dakota

January 31, 1898

Proceeding by Wells County against Edwin H. McHenry and Frank G. Bigelow, as receivers of the Northern Pacific Railroad Company, to enforce payment of taxes. A judgment was rendered for plaintiff. Certain questions are certified here by the trial court; Glaspel, J.

Judgment modified.

Judgment modified.

J. E Robinson and J. J. Youngblood, for plaintiff.

Ball Watson & Maclay, James B. Kerr and J. B. McNamee, for defendants.

Section 9, Ch. 67, Laws 1897 is substantially the same as § 1588, Rev. Stats. Minn. 1894. The Minnesota adjudications upon this law declare that its purpose is to cut off technical defenses which do not go to the merits. Commissioners v. Nettleton, 22 Minn. 356; State v. Certain Lands, 42 N.W. 474; County v. Bachelder, 50 N.W. 536. Until there is an assessment there can be no tax--and until there is a levy there is no tax. Township v. Rose, 53 N.W. 927; Powers v. Larabee, 2 N.D. 155, 49 N.W. 728; Swenson v. Greenland, 4 N.D. 532, 62 N.W. 603; O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434. The levy of taxes is not a judicial function it is exclusively legislative. State Railroad Cases, 92 U.S. 575; Heine v. Levee Commissioners, 19 Wall. 660; Marsh v. Supervisors; 42 Wis. 502. Under the constitution the assessment is jurisdictional. In no other way can taxes be collected upon property by uniform rule. Philleo v. Hiles, 42 Wis. 527; Plumer v. Supervisors, 50 N.W. 416; Adams v. Tonella, 14 So. Rep. 17; Bank v. Hins, 3 Ohio St. 15. Proceedings to enforce taxes for 1890, and prior years are barred by the statute of limitations § 5199, 5201, 5208, Rev. Codes. A tax is a "liability created by statute" within the terms of the code. State v. Certain Lands, 42 N.W. 473; San Francisco v. Jones, 20 F. 188; San Francisco v. Linning, 15 P. 311; State v. Mining Co., 14 Nev. 226; Forster v. Railroad Co., 23 Pa.St. 371; Pine County v. Lambert, 57 Minn. 203. Taxes cannot be levied in any other manner than that designated by law. 1 Desty 467; Warren County v. Klein, 51 Miss. 807. A tax levied in any other manner is void. State v. Shreveport, 33 La.Ann. 1179; Miller v. Corbin, 46 Ia. 150; Mix v. People, 72 Ill. 241; Marion County v. Barker, 25 Kan. 258. The levy being void it was not the intent of the law of 1897 to validate the same. Prindle v. Campbell, 9 Minn. 212; Weller v. St. Paul, 5 Minn. 95. Evidence of the auditor was competent to show that it appeared from the record that the taxes for the year 1890 were not based upon an itemized statement of the county expenses. Maxwell v. Paine, 18 N.W. 546. The statute is mandatory requiring the commissioners to make itemized statement of the county expenses and the same should show of record Shattuck v. Smith, 6 N.D. 56; Cooley Taxation, 339. Statutes requiring a record are mandatory and must be strictly complied with. Perry Co. v. Selma Ry. Co., 65 Ala. 391; State v. Warford, 32 N.J.L. 207; Paldi v. Paldi, 84 Mich. 346. Every proceeding in the course of a levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them. Moser v. White, 29 Mich. 59; Appeal of Powers, 29 Mich. 504; Doe v. McQuilkin, 8 Blackf. 335; 2 Desty, 1066. The failure of the board of equalization to meet was fatal to the tax. Auditor General v. Reynolds, 47 N.W. 442. Power v. Larabee, 49 N.W. 724; Prindle v. Campbell, 9 Minn. 212. A tax law manifestly intended to embrace and include all legislation on that subject, will repeal all provision of former laws not re-enacted in it. Baer v. Choir, 36 P. 286; Cooley on Taxation, 295; 1 Desty, 105; Fox v. Com. , 16 Grat. 1; Merserean v. Merserean Co., 26 At. Rep. 682; Suth. on St. Cr. 154; Com. v. Standard Oil Co., 101 Pa.St. 119-150; Belvidere v. R. R. Co., 34 N.J.L. 193. A statute providing that unpaid taxes after a certain date shall bear a certain rate of interest has no application to taxes assessed and levied before the act took effect. 2 Desty, 765; Peo. v. Thatcher, 95 Ill. 109; Peo. v. Peacock, 98 Ill. 172. A statute prescribing a penalty can not operate retrospectively. 1 Desty 104; Fuller v. Grand Rapids, 40 Mich. 396; Clark v. Hall, 19 Mich. 356. The odd numbered sections were not taxable for the year 1892. The official plats of survey were not filed in the land office until after the levy for that year, although the survey was made before the assessment. The survey fees had not been paid. 5 Copps Land Owner, 5; U. S. v. Curtner, 38 F. 1; Barnard v. Ashley, 18 How. 43; Frasher v. O'Connor, 115 U.S. 102; McCreary v. Haskell, 119 U.S. 327.

CORLISS C. J. BARTHOLOMEW, J., concurring in part and dissenting in part.

OPINION

CORLISS, C. J.

The record in this proceeding is certified to us by the District Court without an appeal, under the provisions of § 10, Ch. 67, Laws 1897. The proper steps having been taken under this statute to obtain tax judgments against lands owned by the Northern Pacific Railroad Company, the defendants, who are receivers of such company, filed their answers setting up various defenses, which will be more specifically referred to as the points certified to us for decision are severally discussed. Some of the lands are indemnity lands. They were selected by the company, in manner and form as prescribed by the secretary of the interior, prior to the levy of the taxes in question. But it appears that the selection was not approved by the secretary of the interior until May 25, 1896. While the facts of this case are different from the facts in Jackson v. LaMoure Co., 1 N.D. 238, 46 N.W. 449, and Grandin v. La Bar, 3 N.D. 446, 57 N.W. 241, in that the selection has, in the case at bar, finally been approved, yet the principle of those cases must govern this. The groundwork of those decisions was that an approval of the secretary of the interior was necessary to vest in the company title of any kind, either legal or equitable. If such approval is the act which transfers the title, it is evident that it is immaterial whether the approval be absolutely refused or withheld or subsequently given. In all cases, whatever action the secretary of the interior takes, the whole title to the property, legal and equitable, remains in the government until he has passed upon the various questions which must be settled before it can be known whether such selection should be assented to by the government or modified or wholly disapproved. When we construed the words, "under the direction of the secretary of the interior," in the act containing the grant of the Northern Pacific Railroad Company, as equivalent to the language used in the Price County Case, 133 U.S. 496, 10 S.Ct. 341, we took ground which made it necessary for us to hold, under the ruling of the Federal Supreme Court in that case, that the Northern Pacific Railroad Company is, as to indemnity lands selected by it, a stranger to the title, and has no taxable interest therein until such selection is approved. The fact that the secretary of the interior has approved the selection, made in 1886, of the land in this case taxed as indemnity land, does not give the company, as of the date of such selection, any greater right therein than it would have had if the approval had been withheld. Unlike place lands, the title to indemnity lands does not vest in the company as of the date of the act of congress containing the grant, but only from the time of the selection thereof; and until the selection is approved there is no selection in fact, but only preliminary steps, which may or may not result in a selection, according to the subsequent action which the proper representative of the government may take in the matter of such selection. This is the explicit declaration of the Federal Supreme Court in the Price County case, and, so long as the opinion in that case stands unmodified, we consider it our duty to hold that until approval no title whatever to indemnity lands vests in the Northern Pacific Railroad Company. In the Price County case the court said that, "until the selections were approved, there were no selections in fact, only preliminary proceedings taken for that purpose, and the indemnity lands remained unaffected in their title." It follows that we must answer in the negative the following question certified to us by the District Court: "Should not judgment be given against indemnity lands for all taxes charged against the same, with interest and penalty as provided by law?"

It is urged that some of the lands within the place limits were not surveyed until after the taxes for the year 1892 had been levied, and that, therefore, such taxes are illegal, so far as they effect such lands. The basis of this claim is the fact that while the survey in the field antedated the assessing and levying of the taxes, yet the plat of the survey was not filed in the land office until after such levy had been made. Counsel for the receivers cite in this connection the following cases: U. S. v Curtner, 14 Sawy. 535, 38 F. 1; Frasher v. O'Connor, 115 U.S. 102, 5 S.Ct. 1141, 29 L.Ed. 311; McCreery v. Haskell, 119 U.S. 327, 7 S.Ct. 176, 30 L.Ed. 408; Barnard v. Ashley, 59 U.S. 43, 18 HOW 43, 15 L.Ed. 285; and also the ruling of Secretary Schurz in the case of In re Foster, 5 Copp Landowner 5. They insist that these decisions establish the rule that a survey is not complete until after the plat is filed in the proper office. As we regard the matter, these cases have no bearing on the point now under discussion. It is undisputed that the survey as made in the field was the survey which was in fact approved, and that the plat which was subsequently filed was in fact the plat of such survey. The lands being within the place limits, the...