Wilson v. City of Fargo

• Decision Date: 17 November 1921
• Citation: 186 N.W. 263,48 N.D. 447
• Parties: WILSON v. CITY OF FARGO et al.
• Court: North Dakota Supreme Court

48 N.D. 447

186 N.W. 263

WILSON

v.CITY OF FARGO et al.

Supreme Court of North Dakota.

Nov. 17, 1921.

Syllabus by the Court.

This action involves the constitutionality of chapter 122, Laws 1921.

It is held:

Inasmuch as two of the judges of the Supreme Court are of the opinion that the act does not violate any provision of the state Constitution, it cannot be said that the act is unconstitutional as violative of the state Constitution, in view of section 89 of the Constitution as amended (article 25, p. 503, Laws 1919), which provides that in no case shall any legislative enactment or law of the state of North Dakota be declared unconstitutional unless at least four of the judges of the Supreme Court so decide.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Stewart Wilson against the City of Fargo and others, to restrain a proposed special election in such city, and from an order overruling a demurrer to the complaint, defendants appeal. Reversed and dismissed.W. H. Shure, City Atty., of Fargo, and George E. Wallace, of Bismarck (B. F. Spalding, of Fargo, and William Lemke, Atty. Gen., of counsel), for appellants.

Engerud, Divet, Holt & Frame, of Fargo, for respondent.

GRACE, C. J.

This is an appeal from an order of the district court of Cass County overruling a demurrer to a complaint. The action is said to be a friendly one, brought by the plaintiff as a taxpayer on his own behalf, and for all persons similarly situated, to restrain a proposed special election in the city of Fargo, called pursuant to chapter 122, Session Laws of 1921, which makes certain amendments to an amendatory act relating to the exemption of property from taxation, and which also provides for limitation of tax levies in that political subdivision, which are authorized to exceed the limitations specified in said chapter by 25 per cent. upon authorization by a majority of the electors voting at a special election. The plaintiff asserts his right to restrain the holding of an election on the theory that chapter 122 is unconstitutional. Several constitutional objections are advanced, but the principal one and those we shall consider are as follows, viz.: That during the passage of the bill the purpose was changed in violation of section 58 of the Constitution, which provided that no bill shall be so altered and amended on its passage to either House as to change its original purpose; and that the bill embraced mort than one subject, in violation of section 61.

We are impelled to give a thorough consideration to and an extended analysis of the statute, in order to arrive at what we believe is the true status as to the validity of the statute, as such validity is challenged by the two provisions of our Constitution above mentioned.

Chapter 223 of the Session Laws of 1919 and chapter 122 of the Session Laws of 1921 are both amendments, and have become part of an original act, viz. that of revenue and taxation. This fact is of importance, and must be kept in mind while considering the constitutionality of the act under consideration with reference to the sections of the Constitution hereinbefore mentioned. The original revenue and taxation act was approved by the Legislature of the state of North Dakota on March 11, 1890. It is chapter 132 of the Session Laws of that year. It consists, as thus enacted, of 109 sections, all of which are relative to the subject of revenue and taxation. Section 5 thereof dealt with exemption from taxation of personal property. Section 98 thereof dealt with the limitation of taxes by the corporate authorities of various political subdivisions.

It appears, therefore, that the tax exemption section and the section relative to the limitation of taxation were a part of the original act of 1890. Without tracing every step in its subsequent history, suffice it to say, the original revenue and taxation act is found in C. L. 1913, largely in its original form, as chapter 34.

Section 5 of the original act became in substance section 2078 of chapter 34, and section 98 of the original act became in substance section 2148 of that chapter. Section 2078 was amended by chapter 223 of the Session Laws of 1919. That chapter re-enacted that section which then passed out of existence and ceased to exist except as to past transactions, and chapter 223 displaced it as part of the revenue and taxation act.

The first contention is that the purpose of the act (chapter 122) was changed during its passage in the Legislature. We believe when this contention is closely examined it will be found to contain no great merit. A casual glance at this chapter might give the impression that its purpose was twofold, in that it refers to exemption from taxation and limitation of taxation. But a careful consideration of the title and of the whole of the act leads to the conclusion that the whole subject or object of the act is taxation. Exemption from taxation and limitation of taxation are not incongruous terms. They relate to the same subject or object, to wit, taxation, and it is our view that the change in the bill during its passage, which related to taxation, did not change the purpose of the bill, for it seems clear that chapter 122 relates to no other subject or object than taxation.

As to the second contention, that the act contravenes section 61 of the Constitution, it may be observed that chapter 223 relates to the subject of taxation. It is true that the term “exemption” is there used, but its use relates exclusively to the subject of taxation. If the term “exemption” appearing there referred to the homestead exemption as defined by law, or to that part of a debtor's property exempt as against the claims of creditors, then that term would not relate to the subject of taxation, and it would not in that case be congruous with the term “limitation of taxation.” But such is not the fact. All of chapter 223 and all of chapter 122 relate exclusively to the subject of taxation, and the terms of both we believe are congruous. Assuming that chapter 223 is an original act-which it is not, but an amendatory act only-it would seem that the amendment, chapter 122, is germane to the subject of that act (taxation), and within the title of it.

There is another view that may be mentioned. Chapter 122 is not an amendment of an act, but an amendment of an amendment. This fact complicates the situation, and we have been able to find no case similar in this respect. Taking chapter 34 as the original act relative to revenue and taxation, and regarding chapters 223 and 122 as in effect amendments thereof-for each has become a part thereof, and are additional and supplementary of it-we think the rule would apply that, if the subject or object matter of the amendment is germane to the subject-matter of the original act (chapter 34), and within the title thereof (revenue and taxation), it is sufficient. In State v. Fargo Bottling Works, 19 N. D. 409, 124 N. W. 387, 26 L. R. A. (N. S.) 872, it in substance was held that-

“If the subject-matter of chapter 187 [an amendment] is germane to the subject of the law of 1890 [the original act] and is fairly within the title of that act, its title is sufficient, whether or not it would be so standing alone.”

It would seem quite clear that all of chapter 122 is germane to the subject-matter of chapter 34, the original act, and within the title of that act, to wit, revenue and taxation. That principle is illustrated by other decisions of this court.

In School District No. 94 v. King, 20 N. D. 618, 127 N. W. 515, the constitutionality of chapter 106 of the Laws of 1907 was challenged on the ground that it contravened section 61 of the Constitution. The act of 1907 was one to amend section 949 of the Revised Codes of 1905, which was:

“An act to provide for a uniform system of free public schools throughout the state and prescribe penalties for violation of the provisions thereof.”

In that case part of the amendatory act did not affect the rights of the plaintiff or any of the inhabitants of the district. This portion of that act conferred authority upon the county commissioners to attach certain portions of the school district to a school district of another county. But, had the rights of plaintiff been affected by that provision, in view of the construction placed on the remainder of the amendment by the court, there would seem to be no doubt that the court would have upheld the constitutionality of the act in this respect, for the same reasons that it held that the remainder of the amendment was within the original act. The court there said with reference to the amendment:

“The title of the act of 1890 [the original act] is sufficiently broad and comprehensive to include section 170 of that act, which was the same substantially as section 949, until amended in 1907. The general subject of public schools includes the division of school districts.”

So in this case it can with as much reason be said that the title of the original revenue and taxation Act of 1890 above mentioned, now chapter 34 of C. L. 1913, is sufficiently broad and comprehensive to include chapter 122, for all that is in the latter relates to taxation, and to no other subject. Reasoning of somewhat similar nature is contained in State v. Fargo Bottling Works, 19 N. D. 396, 124 N. W. 387, 26 L. R. A. (N. S.) 872, and Erickson v. Cass County, 11 N. D. 494, 92 N. W. 841. In the latter case it was said:

“The Supreme Court of Missouri, in construing a constitutional provision of that state in all respects like section 61, supra, in the City of St. Louis v. Tiefel, 42 Mo. 578-590, said: ‘While the clause was embodied in the organic law for the protection of the state and the Legislature, it was not designed to be unnecessarily restrictive in its operation, nor to embarrass legislation by compelling a needless multiplication of separate bills. It was only the intention to prevent the conjoining in the same act of incongruous...