State Ex Rel. Old Line Life Insurance v. Olsness

*699 Birdzell, J. This is a proceeding in mandamus to compel the defendant, as commissioner of insurance, to refund certain so-called hail insurance taxes paid by it upon land upon which it held a mortgage and the title to which it acquired through foreclosure. After a hearing in district court upon stipxdated facts, the plaintiff’s petition for a writ was denied and a judgment of dismissal entered. The plaintiff appeals. The litigation presents but a single ultimate question, namely, whether, under chapter 171 of the Session Laws of North Dakota for 1931, the plaintiff is entitled to a refund of the hail taxes paid by it in the circumstances stated below. In August, 1917, John Clark and his wife joined in mortgaging to the plaintiff certain land in Ward county. Subsequently, the mortgage, being in default, was foreclosed and a sheriff’s certificate of sale issued to the plaintiff, the mortgagee, on the 25th of August, 1923. There being no redemption, in due time a sheriff’s deed issued to the plaintiff. In April, 1923, prior to the foreclosure, the plaintiff paid the 1921 and 1922 taxes on the property, including penalty and interest, and hail indemnity taxes for these years. During the year for redemption from the foreclosure sale the plaintiff paid the 1923 taxes, which payment included the hail indemnity tax for 1923. It is alleged that these indemnity taxes wore paid in connection with the payment of the general property taxes to avoid accumulation of interest and penalties, that the county treasurer at the date of the payments would not accept payment of the general taxes unless the hail indemnity taxes were included, and that the payments were made by the mortgagee for the purpose of protecting its rights under its mortgage. After chapter 171 of the Session Laws of 1931 had gone into effect and prior to December *700 31, 1931, the plaintiff applied for a refund of the hail indemnity taxes so paid, using forms prepared and furnished by the defendant. The plaintiff alleges full compliance with the provisions of chapter 171 and contends that it is entitled to the refund by virtue of said law. The defendant denies that the county treasurer refused to accept payment of the general taxes separate from the hail indemnity tax, denies that the payments were made under compulsion and charges that they were made voluntarily; and further alleges that as to the indemnity taxes for 1921 and 1922 plaintiff has been reimbursed in that such payments were included in the lien of the mortgage foreclosed and in the amount bid by the plaintiff at the sale. He further alleges that there are no moneys available for the payment of said refunds, so that the claims could not be paid though legal and valid. He alleges that the reserve fund set aside for the purpose of making refunds was totally exhausted and depleted before the plaintiff’s claim was presented. Other specific contentions are made which will be later noted. Upon the hearing in district court, the payments made were stipulated, and it was further stipulated that the plaintiff did not tender the amount of the general taxes separate from the hail indemnity taxes and made no demand upon the county treasurer that the general taxes be accepted apart from the hail indemnity tax. But it was also stipulated that from the time of the taking effect of the state hail insurance law, which provided for the levying of the hail indemnity tax, down to the final decision of this court in the case of Davis v. McLean County, 52 N. D. 857, 204 N. W. 459, the hail indemnity tax levied against any given tract in any year was considered by all tax levying and collecting officials as part of the legal tax and was required by such officials to be paid simultaneously with the payment of other taxes, and that at the time of the payments made to the treasurer of Ward county he labored under the belief that he had no right or authority to accept the general tax without requiring the payment of the hail indemnity tax. There were some further stipulations made, subject, however, to the objection that they were incompetent, irrelevant and immaterial, to the effect that certain refunds of hail indemnity taxes had been made to the state land department and others where payments had been made in circumstances similar to those in the instant case; that is, where hail indemnity taxes had been paid by mortgagees, including the state land *701 department, wbo bad subsequently foreclosed tbe mortgages and included in tbe bid at tbe foreclosure sale tbe amount of tbe taxes thus paid. There were also stipulations with respect to tbe status of accounts in tbe bail insurance department, wbicb will be referred to as they become material in considering tbe questions presented upon tbis appeal. A word with reference to tbe bistory of bail insurance indemnity taxes will perhaps conduce to an understanding of tbe questions argued on tbis appeal. Tbe state bail insurance department was established by the legislative assembly in 1919. Sess. Laws 1919, chap. 160. .This law was amended and re-enacted in 1921. Laws 1921, chap. 17. Reference to the latter act will show that it provided for levying an indemnity bail tax adequate to cover losses upon risks assumed or not withdrawn and that such levy was treated as a tax for purposes of collection. But in view of tbe constitutional authority for tbe legislation and of tbe voluntary character of tbe burden, it was held in the case of Davis v. McLean County, supra, that tbe “indemnity bail tax” was not a tax within tbe purview of tbe constitution and was not a lien paramount to antecedent real estate mortgages. Tbis decision became final in June, 1925. At tax sales previously held, however, hail indemnity taxes bad been included in certificates along with tbe general real estate taxes pursuant .to § 10 of the 1921 law. In view of tbe fact that tbe holders of such certificates of tax sale could not subsequently realize upon their certificates to tbe extent of tbe bail indemnity payments as against holders of prior mortgages, tbe legislature in 1921 provided for refunds to such holders. Sess. Laws 1921, chap. 112. In 1929 tbis act was amended so as to provide for extending the right of refund to the holders of liens paramount to tbe bail indemnity tax lien wbo bad paid such bail indemnity in connection with the pay-° ment- of tbe general taxes. Tbis act was in turn amended in 1931 by tbe enactment of chapter 111, Session Laws of 1931. Tbe questions presented on tbis appeal binge largely upon §§ 3, 4 and 5 of chapter 111, Session Laws of 1931. These sections are quoted below. Tbe italicized words and figures represent tbe amendments made in 1931. Omitting tbe italicized portions, therefore, these sections would read as §§ 3, 4 and 5 of chapter 141, Session Laws of 1929. “Section 3. Any bolder of a lien paramount to tbe bail indemnity tax lien wbo, prior to July 1st, 1926, bad paid under compulsion bail *702 indemnity taxes in connection with the payment of general taxes against tbe land covered by bis lien, which hail indemnity taxes have been paid over by the County Auditor or Treasurer to the State Treasurer to the credit of the Hail Insurance Department, or to the tax sale certificate holder, as the case may be, shall be entitled to have refunded to him from the Hail Insurance Department the amount paid by him on account of such hail indemnity taxes, upon filing application and proof as hereinafter provided, but no interest shall be considered to have accrued thereon from the time of such payment by said lien holder; provided that anyone who had paid hail indemnity taxes wider compulsion for and on behalf of the paramount lien holder shall be considered the agent of such lien holder. “Section 4. Such paramount lien holder mentioned in the last preceding section must make application for refund to the Commissioner of Insurance, tendering his tax receipt containing a notation thereon by-the County Auditor showing amount of such hail indemnity tax, penalty and interest paid by him, and an assignment thereof to the Hail Insurance Department, and make satisfactory proof to the Commissioner of Insurance that at the time he or his agent paid the said taxes the hail indemnity tax, penalty and interest thereon noted by said County Auditor did not constitute a valid lien paramount to lien held by him. Upon being satisfied of such facts the Commissioner of Insurance shall refund to said lien holder the amount of said hail taxes, penalty and interest paid by him, and shall also issue him a certificate showing the amount of general taxes, penalty and interest which remains as an additional lien to the credit of said taxpayer’s mortgage. Upon making such payment and certificate the Commissioner shall take an assignment of the tax receipt in trust for -the benefit of the Hail Insurance Department so far as it relates to said indemnity hail tax, and in case the title of the land affected passes and again reverts to the original mortgagor the hail indemnity taxes shall again attach as a lien upon his interest. “Section 5. Such refunds to certificate holders and to holders of paramount liens who paid hail indemnity taxes for which they were not liable shall be made from the following funds, to-wit: A reserve fund that has been set aside or otherwise created or treated as existing in the Hail Insurance Department as a fund to meet anticipated re *703 funds, or abatements of the indemnity bail tax'es, and the fund created by interest collected on all interest bearing funds, of. the State Hail Insurance Department for the year 1927, and successive years. These funds shall be resorted to in order stated to whatever extent may be necessary to make all such refunds.” The appellant contends that this statute must be construed as though the words “under compulsion” did not appear in § 3, for the reason that the title is not broad enough to include legislation covering payments made under compulsion. In the event this contention be not sustained, an alternative interpretation is suggested under which payments made in the circumstances shown in this record would be regarded as made under compulsion within the act. The title of the act reads: “An Act to amend and re-enact chapter 172 of the Session Laws of North Dakota for the year 1927, providing for a refund to hail tax purchasers and persons paying hail taxes for which they were not liable, designating the funds from which payment shall be made, and declaring the duty of the insurance commissioner in relation thereto.” It is said that this violates § 61 of the Constitution which provides that no bill shall embrace more than one subject which shall be expressed in its title and that a bill which violates this provision shall be invalidated only as to so much thereof as shall not be so expressed. We are of the opinion that there-is no merit to the contention that under the title quoted above legislation could not be enacted limiting authorized refunds to moneys paid under compulsion. Refunds of taxes illegally exacted arc generally conditioned on the existence of such compulsion as will negative voluntary payment. Consequently, any legislation that would purport to deal with the subject of refunding can very appropriately prescribe all the conditions that must exist to authorize it. It is elementary, of course, that a title does not need to be a complete index of the details of the legislation. The subject of refunds is incorporated in the title to the act in question, and the statement of a condition which but defines the circumstances in which refunds are to be allowed is clearly germane to and connected with the subject. See 59 C. J. 812. Were the payments made shown to have been payments under compulsion? The stipulated facts shown that prior to the decision of this court in Davis v. McLean County, 52 N. D. 857, 204 N. W. 459, supra, *704 tbe so-called bail indemnity .taxes were treated as other taxes; that although they were not in lav liens prior to existing mortgages this was not generally understood and the officers charged with collection uniformly required the hail indemnity tax to be paid as though it were a .general tax and they did not understand that there was any authority in law to differentiate between the two. While there was no tender of the general taxes exclusive of the hail indemnity taxes, it is said that this fact is unimportant in view of the general practice under which all were required to be paid together. In these circumstances it is contended there was in fact a payment under compulsion within the statute. In considering this contention .one important circumstance should be noted. The hail indemnity taxes are not in any sense illegal. They constitute valid liens upon the land, but the lien is subsequent to the lien of prior mortgages. Davis v. McLean County, supra; State v. Johnson, 54 N. D. 184, 208 N. W. 966. There is nothing in the record to show that the plaintiff treated the lien of the hail taxes as affecting it differently than the lien of the general taxes. For aught that appears, it paid the hail indemnity under the mistaken belief that the lien was prior to its mortgage. It does not affirmatively appear, as it did in the case of Chicago, M. & P. S. R. Co. v. Bowman County, 31 N. D. 150, 153 N. W. 986, that at the time of payment such a charge was regarded by it as being illegal or as an inferior lien which was discharged to prevent penalties accruing on a .superior lien. Neither does it appear that such payment was exacted .as a condition of obtaining a public service which the plaintiff was entitled to receive without such payment, as in Diocese of Fargo v. Cass County, 28 N. D. 209, 148 N. W. 541. There is, in short, no affirmative showing of protest or of compulsion. On the contrary, the facts rather show a voluntary payment and a subsequent discovery by the plaintiff that its lien was in law superior to a portion of the lien discharged by such payment. What is shown with regard to the practice of the collection officers merely reflects what probably would have resulted if the plaintiff had in fact tendered the general taxes exclusive of the hail tax. To hold •that compulsion within the refund statute may be predicated upon the probable conduct of the collection .officers in declining to accept from *705 tbe mortgagee a tender of a portion, of tbe entire lien would be to attach no meaning whatsoever to tbe words “under compulsion.” For, it would follow that every payment by a paramount lien bolder would be a payment under compulsion. We cannot assume that these words were written into tbe statute by amendment in 1931 to no purpose. By these words it must have been intended to distinguish between a voluntary payment by a paramount lien bolder and an involuntary payment. We are of tbe opinion that tbe record does not show tbe payment in question to have been made under compulsion. We are impelled to this conclusion, not only by considerations of obedience to tbe fundamental rule for the construction of statutes which requires that tbe words employed should be given, if possible, their ordinary meaning, but by tbe history of the statute which evidences a legislative intention to restrict its application. In view of this history, we think the ordinary restrictive meaning of the phrase “under compulsion” is consistent with that evident intention and, consequently, that an artificial meaning cannot be given to the expression. In the first enactment providing for refunds to paramount lien holders (Sess. Laws 1929, chap. 147, § 3), there were no limitations or requirements other than that the claimant be a holder of a paramount lien, that he had paid a hail indemnity tax for any prior year in connection with the payment of the general taxes, and that he had not been otherwise compensated. Claims for refunds under this statute could have been made at any time prior to January 1, 1930. This was a wide open refund statute. Any paramount lien holder who had not been otherwise compensated for such payment was entitled to the remedy therein provided. In 1931, a year after the limitation for filing claims under this wide open 1929 law had expired, the legislature re-enacted its provisions with certain changes. The 1931 law provided for refunds to paramount lien holders only as to hail indemnity taxes paid by them “prior to July 1, 1926,” and for the first time employed the restrictive expression “under compulsion.” The statute on its face, therefore, shows a legislative intention to restrict the claims that may be filed under it to payments made prior to a certain time, as well as to those made under compulsion. These restrictions are made only after the failure of claimants to have presented their claims under the wide open' statute, the limitation of which had already run. In view of this his *706 tory and of the restrictive purpose evidenced on tbe face of the statute, we are of the opinion that we are not at liberty to disregard the ordinary meaning- of the restrictive phrase “under compulsion,” — even though, given its ordinary meaning, the statute may have an exceedingly narrow application. As to a portion of the hail indemnity paid by the plaintiff, another reason appears why the refund claim is not within the statute. As stated above, the amount paid by the plaintiff for hail indemnity for 1921 and 1922 was added to the amount of the plaintiff’s mortgage and included in its bid at the foreclosure sale. No redemption being-had, the plaintiff obtained title to the property under its sheriff’s certificate. The original refund statute, chapter 172 of the Laws of 1927, was clearly designed to protect holders of tax certificates whose liens to the extent of hail indemnity taxes included therein had been cut out by holders of paramount liens. To obtain the refund they were required to make a showing that they had not been compensated in anyway for the moneys paid for the certificate. The subsequent amendments to this chapter, as above stated, extended the right of refund to the holders of paramount liens who had paid hail indemnity taxes under compulsion in connection with the payment of general taxes; and as an evidence that they were not to obtain refunds where they had been otherwise compensated they are required by § 4 of the present act to assign the tax receipts in trust for the benefit of the hail insurance department so far as they relate to the indemnity hail tax, so that in case the title to the land should subsequently revert to the original mortgagor the hail indemnity taxes should again attach as a lien upon his interest. Obviously, if a mortgagee who has included in his bid at the foreclosure sale the amount paid by him as an indemnity hail tax should, after obtaining a deed in foreclosure, assign his tax receipt to the hail insurance department, the department would obtain no right by virtue of the receipt, because as between mortgagor and mortgagee such lien is discharged. It is part of the purchase price of the land paid by the mortgagee. (See Harvison v. Griffin, 32 N. D. 188, 155 N. W. 655; Sletten v. First Nat. Bank, 37 N. D. 47, 163 N. W. 534; Security Bldg. & L. Asso. v. Bacon, 62 N. D. 658, 244 N. W. 644), and if the department succeeding to the rights of the mortgagee on the tax receipt should subsequently attempt to enforce the lien against the mort *707 gagor to whom the title had reverted, it would be met with the contention that the lien had been discharged. It was clearly not the intention of the law to permit a purchaser holding a paramount lien to be compensated twice for the hail indemnity tax — once by including the same in its purchase and again from the hail fund. Neither was it the purpose to require the mortgagor in any case to pay the hail tax twice • — once to the mortgagee if he redeems and again to the hail department when title reverts. But it is suggested that the attempt to include the hail indemnity in the foreclosure was a nullity and that by so doing the plaintiff bid an ■amount in excess of that which was due under its mortgage for which excess it is accountable to the mortgagor or subsequent lien holders. The record does not show that there is any subsequent lien holder that was not subject to the lien of the hail indemnity, nor does it show that the mortgagor has made any claim to the surplus, nor but that if such claim should be asserted it could be successfully opposed by the plaintiff or the sheriff by showing that the plaintiff was at least an equitable assignee or subrogee of the hail indemnity lien and that in any event the lien is superior to the right of the mortgagor. See Beyer v. Investors’ Syndicate, 31 N. D. 247, 153 N. W. 476. It does not appear that the indemnity was treated as a siirplus. Since it was the primary intention of the legislature to prevent loss to tax certificate holders and prior incumbrancers, and since it is not evident that a prior incumbrancer who has voluntarily bid the amount of hail indemnity taxes paid by it, over and above the amount of its mortgage indebtedness, will sustain a loss unless refund is allowed, such purchaser has not brought itself within the terms and spirit of the statute as to such portion of its claim. The parties to this litigation are not in accord with respect to the construction of § 5 of the Act and with respect to the identity of the-funds out of which the statute directs the refunds to be made. The-appellant contends that the reserve fund mentioned in § 5 of the Act includes, by construction at least, whatever moneys have been paid into, the hail fund by tax purchasers and superior lien holders who were-entitled to refunds under the Act and whose money has indirectly-gone to replenish the revolving fund from which losses were immediate'ly paid. It is contended that some $585,000 are thus traced to the *708 hail fund through payments made from such sources, and that, in legal effect if not in reality, it exists in the hail fund as a reserve for refunds. This is shown, partly at least, it is contended, by the claims filed and the proofs required to accompany such claims. In any event it is contended that on January 1, 1927, there was a credit in the fund levied for the purpose of making refunds of $243,393.77, and that crediting this fund with interest on C. D.’s, on daily balances, with delinquent taxes and other items, the aggregate credits to January 31, 1932, amounted to $485,785.98, and deducting refunds made during the period of $395,047.72 a credit balance is left in the fund of $90,738.26. As against this contention the respondent contends that such reserve fund was not entitled to be credited with some of the substantial items ■enumerated by the plaintiff and that there is in reality a deficit in this reserve fund of $130,536.18. In any event, the respondent contends that the statute cannot be so construed as to enhance the “reserve fund” in the manner suggested by the appellant, nor to direct payment from other adequate funds. Inasmuch as it has become necessary for us to determine this cause adversely to the plaintiff upon the merits of its claim and.in so determining it to find that the plaintiff is not within the statute authorizing refunds, we feel it is neither necessary nor proper to determine in this cause the validity of the respective contentions concerning the funds out of which refunds may be made. Judgment affirmed. Nuessle, Ch. J., and Buee and Bueke, JJ., concur.