Eisenzimmer v. Bell , 75 N.D. 733 ( 1948 )

Plaintiff has petitioned for a rehearing. In the petition it is contended that, in construing ND Rev Code 1943, § 57-0208, subsection 15, this Court overlooked and failed to give due effect to punctuation marks in the section. It is said:

"The point that I make was not discussed by counsel in the briefs nor in the oral argument nor considered by the Court. That is, that the Court entirely overlooked the comma following the words, `All farm structures,'. Had it taken that into consideration the decision of course must have been in favor of the respondent. Let us quote the statute:

`57-0208. Property Exempt from Taxation. All property described in this section to the extent herein limited shall be exempt from taxation, that is to say: . . . '15. All farm structures, andimprovements located on agricultural lands. This subsection shall be construed to exempt farm buildings and improvements only, and shall not be construed to exempt from taxation industrial plants,or structures of any kind not used or intended for use as a partof a farm plant, or as a farm residence;' North Dakota Revised Code of 1943, Section 57-0208, Pages 3636 and 3638. . . . the statute very plainly and clearly says that there is exempt `Allfarm structures'. After the word `structures' there is a comma. That statement, `All farm structures', is complete. The legislature then went on to include certain other exemptions of which we are not interested and say, `and improvements located on agricultural lands'. This clause has nothing whatsoever to do with the farm structures. It relates to a different subject which probably would include trees and fences and like improvements. . . . After the word `lands' it will be noticed that we have a period so that the legislature very plainly and very clearly exempted two classes of improvements. The first, all farm structures; second, improvements located on agricultural lands."

The statutory provision in question did not originate in ND Rev Code 1943. It was first enacted in 1919. Laws 1919, Chapter 223, subsection 10. The provision was enacted pursuant to § 176 of the Constitution as amended at the general election in 1918, which section as amended authorized the legislative assembly to exempt "any or all classes of personal property from taxation" and provided that "within the meaning of this section, fixtures, buildings and improvements of every character whatsoever upon lands shall be deemed personal property." Laws 1913, p 507. The statute enacted in 1919 (Laws 1919, Chapter 223) so far as pertinent here provided:

"All property described in this section to the extent herein limited shall be exempt from taxation, that is to say: . . .

"10. All structures and improvements on agricultural lands.

"11. Structures and improvements, used as a place of residence by the owner on village, town or city lots to the amount of one thousand dollars ($1,000)." Laws of North Dakota 1919, Chapter 223.

The legislature here dealt with the exemption of structures on two different types of land:

(1) structures and improvements on agricultural lands; and

(2) "structures and improvements used as a place of residence by the owner on village, town or city lots."

In 1921 subsection 11 of Chapter 223, Laws 1919, was amended so as to reduce the amount of exemption therein provided from $1,000 to $500. Laws 1921, Chapter 122. In 1923 the legislative assembly repealed Chapter 122, Laws 1921, and thereby eliminated the exemption formerly allowed on structures and improvements used as a place of residence by the owner on village, town or city lots. Laws 1923, Chapter 309. The same legislative assembly reenacted and amended the former law, and amended subsection 10, Chapter 223, Laws 1919, to read as follows:

"All structures and improvements on agricultural lands, provided that this subsection shall be construed to mean farm buildings and not industrial plants, residences or other structures located without the limits of any city, town or village, not used or intended for use as a farm residence or as a part of a farm plant." Laws 1923, Chapter 308, Subsection 14. Said subsection was again reenacted and amended in 1929 (Laws 1929, Chapter 230) to read as follows:

"All farm structures and improvements located on agricultural lands. This subsection shall be construed to exempt farm buildings and improvements only, and shall not be construed to exempt from taxation industrial plants or structures of any kind not used or intended for use as a part of a farm plant or as a farm residence."

The law so remained until the enactment of the North Dakota Revised Code of 1943 and said section as embodied therein reads as follows:

"All farm structures, and improvements located on agricultural lands. This subsection shall be construed to exempt farm buildings and improvements only, and shall not be construed to exempt from taxation industrial plants, or structures of any kind not used or intended for use as a part of a farm plant, or as a farm residence;" ND Rev Code 1943, § 57-0208, subsection 15. It will be noted that the provision as embodied in the ND Rev Code of 1943, § 57-0208, subsection 15, is a literal restatement of the provision as contained in Chapter 230, Laws 1929, with the single exception that in the first sentence a comma is placed after the word "structures" and it is upon this comma that the contentions in the petition for rehearing are predicated.

The history of the legislation is in harmony with and lends support to the construction placed upon the statute in the former opinion. When the original statute was enacted in 1919 there was no legislative intention that a residence situated upon a lot within a city should be deemed a structure on agricultural lands within the provisions of the statute, nor has the legislature by any subsequent enactment indicated any intention to extend the exemption of "all structures and improvements on agricultural lands" provided in the 1919 enactment to a residence on a lot within a city.

The use of the comma in § 57-0208, subsection 15, does not in our opinion evidence any intention on the part of the lawmakers to change the former law.

"`A mere change of phraseology, or punctuation, or the addition or omission of words in the revision or codification of statutes, does not necessarily change the operation or effect thereof, and will not be deemed to do so unless the intent to make such change is clear and unmistakable. Usually a revision of statutes simply interates the former declaration of legislative will. No presumption arises from changes of this character that the revisers or the legislature in adopting the revision intended to change the existing law; but the presumption is to the contrary, unless an intent to change it clearly appears.' 59 CJ pp 894, 895.

`The general presumption obtains that the codifiers did not intend to change the law as it formerly existed. Braun v. State, 40 Tex Crim 236, 49 S.W. 620, 622; United States v. Ryder,110 U.S. 729, 740, 28 L ed 308, 312, 4 S. Ct. 196, 201. Changes made in the revision of statutes by alteration of the phraseology will not be regarded as altering the law unless there is a clear intent to so do.' State ex rel. Kositzky v. Prater, 48 N.D. 1240, 189 N.W. 334, 337." State ex rel. Johnson v. Broderick, ante, 340, 27 N.W.2d 849, 864.

We adhere to the former opinion. A rehearing is denied.

CHRISTIANSON, Ch. J., NUESSLE and BURKE, JJ., and MILLER and HUTCHINSON, District Judges, concur.