Campbell v. Towner County

*620 Nuessle, J. Plaintiff brought this action to recover a bounty claimed for the planting of trees pursuant to the provisions of chapter 252, Session Laws 193?, as amended by chapter 245, Session Laws 1939. In his complaint plaintiff set out the facts on which he relied to bring him within the terms of the statute, that he had claimed and demanded the bounty, that his demand had been refused, and asked judgment for the amount claimed and that it be applied first in payment of his delinquent taxes, and that any excess remaining over be paid to him. The defendant county, answering, put plaintiff upon his proofs as to the facts and challenged the constitutionality of the statute in question. The case was tried to the court without a jury. Judgment was ordered and entered for the plaintiff. Whereupon the defendant perfected the instant appeal. The facts as found by the trial court are substantially as follows: The defendant is one of the organized counties of the state of North Dakota. The plaintiff owns and occupies a quarter section of land situated within the defendant county. In 1939, plaintiff entered into a co-operative agreement with the United States to have trees planted on his land under the government Shelterbelt Plan. Pursuant to this agreement some five acres of plaintiff’s land were planted to forest trees during the spring of 1939. The trees grew and were cultivated, and plaintiff thereafter filed with the auditor of the defendant county a plat of the land on which the trees had been planted, set forth the facts in relation to the growth and cultivation thereof, and demanded the sum of twenty dollars for such planting and cultivation pursuant to the provisions of chapter 252, Session Laws 193?, as amended by chapter 245, Session Laws 1939. The 1938 taxes against plaintiff’s land were unpaid and delinquent at the time the application was filed and plaintiff demanded that the money so claimed by him be applied first in payment of such taxes, and that any excess above the amount thereof be paid to him. We have examined the record. We think it sustains the findings of the trial court. So the questions for consideration now are as to whether, on the facts established, the plaintiff has brought himself within the terms of the statute so as to entitle him to the bounty and, if so, *621 whether the statute contravenes the provisions or any of them of the Constitution of the state of North Dakota. The defendant challenges the constitutionality of the statute on various grounds, the first of which is that it violates § 186 of the Constitution of the state of North Dakota, as amended by article 53 of Amendments (see Session Laws 1939, page 497). We hold that the plaintiff has brought himself within the terms of the statute under which he claims, so we must examine this contention. If it be sustained, the judgment must be reversed and it will be unnecessary to consider the other challenges interposed. . Chapter 245, supra, provides, so far as is material here: “Any person who shall hereafter plant, cultivate and keep in growing thrifty condition one acre and not more than ten acres of prairie land with any kind of forest trees, and shall plant, or have planted said trees, shall be entitled to four dollars ($4.00) for each acre so planted' and cultivated and two dollars ($2.00) bounty per acre for each succeeding year up to four, in which such trees are kept cultivated and growing, to be paid out of the general fund of the county wherein such trees are so planted, but such bounty shall not be so paid unless such grove be maintained upon a tract of not less than eighty acres and shall have at least four hundred living trees in each acre so maintained and kept in growing condition, and in no case shall any bounty be paid in excess of the amount of real estate taxes levied for such year upon the quarter section of land of which such parcel of land planted to trees is a part. Provided, further, that in the event there are any unpaid taxes levied and unpaid against the quarter section of land of which such parcel of land planted to trees is a part at the time application is made for said bounty, such bounty, if allowed, shall be credited upon the amount of such taxes so unpaid, and only the amount in excess of such taxes shall be paid to the applicant.” Section 186 of the Constitution, as amended by Article 53 of Amendments, provides: “(1) All public moneys, from whatever source derived, shall be paid over monthly by the public official . . . receiving the same, to the state treasurer, and deposited by him to the credit of the state, and shall be paid out and disbursed only pursuant to appropriation first made by the legislature. . . . “(2) No bills, claims, accounts, or demands against the state or any *622 county or other political subdivision shall be audited, allowed, or paid until a full itemized statement in writing shall be filed with the officer or officers whose duty it may be to audit the same, and then only upon warrant drawn upon the treasurer. . . The defendant’s contention is that § 186 of the Constitution, supra, requires that public moneys from whatever source derived belonging to the state must be paid to the state treasurer, and can be disbursed only pursuant to legislative appropriation and on warrant drawn by the proper officer; that the statute, chapter 245, supra, violates these requirements. In that behalf defendant urges that the statute in question providing for the satisfaction of delinquent taxes out of any bounties that may be earned attempts to devote to that purpose not only taxes levied for local beneficiaries, but also the state’s portion thereof; that it is immaterial that the taxes have not been collected and transmitted to the state; that that portion belonging to the state is to be considered, so far as the provisions of the Constitution with respect to the disbursement thereof are concerned, as if it were in the state treasury. We think there is substance to the defendant’s contention. The statute provides that in cases such as the instant one the bounty shall be credited upon the unpaid taxes, if any, against the land on which the trees are planted and only the amount in excess of such taxes shall be paid to the applicant out of the general fund of the county. Of course the taxes when collected will be distributed to the state and the several local subdivisions participating therein. Though in any particular case the portion going to the state may be small, nevertheless it is public money and must, when collected, be paid over to the state treasurer. Nor do we think the fact that the taxes are uncollected at the time the credit is taken can make any difference with respect to the portion belonging to the state. It is public money. It must be paid to the treasurer. It can be disbursed only pursuant to the requirements of the Constitution. The legislature cannot substitute some other method of collection and disbursement. See, in this connection, Institute for Education v. Henderson, 18 Colo 98, 31 P 714, 18 LRA. 398. Section 186 of the Constitution, supra, prescribes the manner in which public funds shall be paid out and disbursed. We need not here enter upon a discussion of the reasons underlying the provisions of *623 § 186. But see Ristine v. State, 20 Ind 328. Pursuant to § 186, there must first be an appropriation by the legislature, and then payment from this appropriation can be made only on warrant drawn upon the treasurer for the amount to he paid. This court has heretofore had occasion to pass upon the question as to what constitutes an appropriation within the meaning of that term as used in the Constitution. See, State ex rel. McDonald v. Holmes, 19 ND 286, 123 NW 884. In that case we said: “From a careful consideration of the authorities on the subject and of the terms of our Constitution, we think an appropriation in the sense that that word is used in our Constitution, is the setting apart from the public revenue of a definite sum of money for the specified object in such a manner that the officials of the government are authorized to use the amount so set apart, and no more, for that object.” The authorities amply sustain the rule thus laid down in State ex rel. McDonald v. Holmes, supra. See Crane v. Frohmiller, 45 Ariz 490, 45 P(2d) 955, and authorities cited therein; Institute for Education v. Henderson, 18 Colo 98, 31 P 714, 18 LRA 398 and Ristine v. State, 20 Ind 328, supra. The statute here under consideration places no limit upon the amount that may he paid for tree bounties pursuant to its provisions. It is true there is a limit to the amount that may be paid on any particular claim, but there is no limit placed upon the number of claims that may be paid except that which is obtained by dividing eighty into the whole number of acres included within the state of North Dakota. And such a limit is not a practicable one. It is, in effect, no limit at all. Accordingly, we must hold that the statute violates § 186 in its attempt thus to provide for the payment of tree planting bounties. But the statute is subject to a further vice. Pursuant to § 186, moneys canot be paid out of the state treasury even though appropriation be made therefor except upon warrant drawn on the treasurer. If money due the state but not yet collected is subject to the same requirement with respect to its disposition, as money already paid into the treasury, and we have shown that it is, the statute is bad on this account also. See Institute for Education v. Henderson, 18 Colo 98, 31 P 714, 18 LRA 398, supra. What we have said above disposes of the instant appeal. So it is *624 unnecessary for ús to pass upon the other points made by the defendant. The judgment of the district court is reversed and the case is remanded for disposition in accordance with this opinion. Burr, Ch. J., and Burke, Morris, and-Christianson, JJ., concur.