Campbell v. Towner County , 71 N.D. 616 ( 1941 )

On reargument I come to the conclusion that the issue discussed does not require construction of § 186 of the Constitution of this state as amended.

As set forth by the original opinion in this case, and by the decision of this court after argument on rehearing, the sole question determined is whether this Law of 1939 violates § 186 of the Constitution as amended, in taking state taxes without an appropriation therefor as made by the legislature.

The legislature, in 1937, enacted chapter 252. Section 1 of this chapter 252 was amended by chapter 245 of the Session Laws of 1939.

The action was commenced on October 17, 1939, and the amended complaint shows demand for bounty "as provided for by chapter 252 of the Laws of North Dakota for the year 1937, as amended by chapter 245 of the Laws of said state for the year 1939."

When plaintiff applied for the bounty, the real estate taxes for 1938, levied on the quarter where the grove was planted, were unpaid, and he demanded that the bounty be credited upon his taxes for the year 1938. The relief demanded is governed, therefore, by chapter 245 of the Session Laws of 1939, and the facts are as stated in the opinion of the majority.

However, I do not agree with the construction given to this chapter. It will be noted that the bounty is to be paid out of the general fund. It does not come out of the state taxes or the school taxes. The proviso requires that if the taxes levied against this quarter section of land are unpaid at the time the application for the bounty is made, the amount of the bounty is to be credited on such taxes, that is, that these taxes must be paid out of the bounty, "and only the amount in excess of such taxes shall be paid to the applicant." Thus, if the grove grower has paid his taxes on this quarter section, he gets his bounty paid to him in cash. If he has not paid these taxes, he still gets his bounty, but instead of the cash from the general fund being paid into his hand, it is paid to him by paying the unpaid taxes for him, and then paying to him personally the amount of the bounty that is in excess of the taxes. In deducting the amount of the bounty that is to be credited upon the unpaid taxes, the county does not cancel the state taxes or the school taxes. They are paid, and the amount will be remitted as required by law. The county takes the bounty, pays the taxes, gives the applicant credit on his tax bill for this amount, and if there be a remainder in the bounty, it is paid to him. If the amount of the taxes unpaid on the quarter section be in excess of the bounty, the applicant still gets his bounty. It is applied on his taxes, and he must pay the remainder of the taxes in cash. It is merely a matter of bookkeeping. It may at times result in a partial payment of taxes, but that is not new procedure, nor is deduction of taxes from any amount due from the county a new idea.

Chapter 245 of the Session Laws of 1939 bears this construction. The bounty is paid from the general fund of the county — not from state taxes or school taxes. The applicant had a debt due him from the county. Applicant's state taxes, school taxes, and county taxes are paid out of this debt by this method of credit, as far as the bounty will go. Hence, it would appear that the provisions of § 186 of the Constitution as amended are not involved.

Reference is made to chapter 15 of the Session Laws of 1941, amending chapter 245 of the Laws of 1939, as showing legislative construction of the legislative intent in 1939. If this chapter 15 of the Session Laws of 1941 be of any value in construing the legislative intent in 1939, it would appear to me that this intent is shown clearly to support the views hereinbefore set forth. Chapter 245 of the Laws of 1939 makes specific provision for the payment of the bounty "out of the general fund of the county," whereas chapter 15 of the Session Laws of 1941 eliminates this provision entirely, and makes no provision for paying this bounty, except as a credit on the taxes levied on the quarter section. Chapter 245 made no provision for apportioning "to the shares due the state and respective taxing districts for general fund levies," the proportionate share of the bounty. This provision is found in the Session Laws of 1941. Therefore, if the act of the legislature in 1941 is to have any weight in determining the meaning attached to chapter 245 of the Session Laws of 1939, it would appear as if the legislature of 1941 concluded that there was no provision in the 1939 law for charging any portion of the bounty to the state or to the other taxing districts, and changed the theory of payment accordingly.