State ex rel. Arnot v. Flaherty

Pee Cueiam. This is an appeal from an order entered by the district court of Burleigh county overruling a demurrer to plaintiff’s complaint. The action is one to enjoin the county auditor from reducing the tax levy made by the city of Bismarck for the fiscal year com [551] mencing September 1, 1919. Tbe complaint alleges that tbe defendant county auditor, under and by virtue of the authority purported to be conferred upon him by chapter 61, Laws, Special Session, 1919, is about to, and unless restrained from so doing, will “cut down and reduce the tax levy made by the city of Bismarck for said fiscal year. The complaint further avers that said chapter 61 is “retroactive and ■ex post fado in effect, and unconstitutional and void.” In other words, the action is one to restrain the defendant county auditor from performing the duties enjoined upon him by said chapter 61, on the ground that said chapter is unconstitutional. At the regular session in 1919 the legislature enacted chapter 214, Laws 1919, which provides for the limitation of tax levies and debt limits in counties and political subdivisions thereof. The first two sections of the chapter read: “Section 1. For the years 1919 and 1920, the total annual amount of the taxes levied for any purpose, except special levies for local improvements and for the maintenance of sinking funds in any county or political subdivision thereof, shall not exceed by more than 10. per cent the amount that would be produced by the levy of the maximum rate provided by law upon the assessed valuation of 1918; provided, that for road or school purposes the amount levied may be 20 per cent for 1919 and 40 per cent for 1920, respectively, upon the basis of the assessed valuation of 1918. “Section 2. No salary of any official now determined on the basis of the amount of the assessed valuation of the taxable property in any county or political subdivision thereof shall be increased, prior to July 1, 1921, beyond the amount now authorized on the basis of the assessed valuation of 1918.” At the special session convened in November, 1919, chapter 214 was amended and re-enacted as chapter-61 of the laws of such special session. As so amended and re-enacted the two above-quoted sections read: “Section 1. For the years 19*19 and 1920, the total annual amount of the taxes levied for any purpose, except special levies for local improvements and for the maintenance of sinking funds, in any county or political subdivisions thereof, or in any village, town, or city within the state, shall not exceed by more than 10 per cent the amount that would be produced by the levy of the maximum rate provided by law [552] upon the assessed valuation of 1918; provided, that for road and school purposes the'amount levied may be 20 per cent for 1919 and 40 per cent for 1920, respectively, upon the basis of the assessed valuation of 1918. “Section 2. No salary of any official now determined on the basis of the amount of the assessed valuation of the taxable property in any county or political subdivision thereof, or in any city, town, or village shall be increased, prior to duly 1, 1921, beyond the amount now authorized on the basis of the assessed valuation of 1918.” The act also contained the following provisions: “Section 5. In all cases wherein levies have been made or salaries or debts increased, or any duty or power of any official has been limited or extended in excess of or contrary to the limitations prescribed herein, the same shall be revised and corrected so as to conform to the provision of said chapter 214, Laws of North Dakota 1919, as hereby amended. Any county, city, town, village, township, or other officer violating any of the provisions of this act, shall be subject to a fine of not less than $100 nor more than $500. “Section 6. All acts or parts of acts, in so far as inconsistent with provisions of this act, are hereby repealed. “Section 1. This act is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval.” The plaintiff contends that chapter 214 was not. applicable to cities. The respondent, on the other hand, contends that though the language does not in fact include cities, nevertheless the legislature intended that the act should apply to cities. In other words, it is contended that the legislature, in speaking of political subdivisions of counties, meant to include cities. The respondent admits, however, that chapter 61 of the laws adopted at the special session is applicable to cities, but he contends that the law is unconstitutional as so applied. We do not find it necessary in this action to determine whether chapter 214 as originally adopted applied to cities. The chapter as amended by chapter 61 of the laws adopted by the special session clearly does, and it has not been shown, and the complaint of the plaintiff wholly fails to show, wherein this latter statute, in any manner, contravenes any constitutional provision. That the legislature has power to legis [553] late with respect to the subject, and to accomplish the object sought to be accomplished by chapter 214, Laws 1919, we have no doubt. Similar legislation was construed and sustained by this court in Great Northern R. Co. v. Duncan, 42 N. D. 346, 176 N. W. 992. It is true the legislation there construed was prospective in its operation, whereas chap. 61, Laws, Special Session, 1919, by its terms is retroactive. But a law is not necessarily invalid because it is retroactive. Such law is invalid only if it violates the constitutional guarantees that no bill of attainder, ex post facto law, or law impairing the obligations of contract, shall ever he passed. U. S. Const. art. 1, § 10; N. D. Const. § 16* Unless violative of some right guaranteed by the state or Federal Constitution, tax laws may be given a retroactive effect. 25 R. C. L. p. 795; McQuillin, Mun. Corp. § 709. The complaint in this case sets forth no facts which justify the inference that chapter 61, Laws, Special Session, 1919, impairs any contract obligations. We cannot assume that it will have that effect. The presumption is, it will not. The question whether a law impairs the obligations of a contract will be considered and determined only when it is necessarily involved, and raised by one who has an interest in the determination thereof. Mohall Farmers’ Elevator Co. v. Hall, 44 N. D. 430, 176 N. W. 131. The Supreme Court of the United States has said: “Unless the party setting up the unconstitutionality of the state law belongs to the class for -whose sake the constitutional protection is given,, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if for any reason, or as against any class embraced, the law is unconstitutional, it is void' as to all.” New York ex rel. Hatch v. Reardon, 204 U. S. 152, 51 L. ed. 415, 27 Sup. Ct. Rep. 188, 9 Ann. Cas. 736. As we construe the complaint, it fails to show either that the plaintiff holds any contract the obligations of which will he impaired, or that any contract obligations whatever have been or necessarily will be impaired. Upon the oral argument some refernce was made to certain items contained in the appropriation ordinance of the city of Bismarck upon-which the tax levy involved in this action was based. Appellant’s coun [554] sel, however, contended that the sole question involved on this appeal is whether the defendant county auditor is justified in carrying out the provisions of chapter 61, Laws, Special Session, 1919, and that the case does not involve the validity of any of the items for which the city commission appropriated money and for which the tax levy in question was made. The correctness of such contention was not seriously questioned by the counsel for the respondent, and, in our opinion, the contention must be sustained. Hence, we do not determine what, if any, reduction the county auditor may make in the tax levy of the city of Bismarck. The presumption is that he will do his duty; that he will permit the tax to stand in such amount as is permissive, and will make such deductions only as are proper. In view of certain arguments advanced both in the briefs and on the oral argument, we deem it proper to say that, while expressing no opinion upon the items involved in the tax levy of the city of Bismarck for 1919, we do not believe that the general city tax referred to and authorized by § 8680, Comp. Laws 1913, includes the tax authorized by §§ 4007, 2006 — 2035, and 4059; Comp. Laws 1913, respectively, for library, highway, and park purposes. That is, we believe that in cases where these taxes may be, and are, legally levied, they are in addition to those authorized by § 3680, supra. All such taxes, however, are subject to chapter 214, Laws 1919, as amended and re-enacted by chapter 61, Laws, Special Session, 1919. The order appealed from is reversed, and the cause remanded, with directions that it be dismissed. Christianson, Ch. J., and Robinson, Birbzell, and Bronson, JJ., concur. Grace, J. I concur in the result.