*1 Ap In the Confirmation Matter of the proval of the Master Contract between GARRISON DIVERSION CONSERVANCY DISTRICT and the United States and Three-way among the Four Contracts States, respectively, Dickey-Sargent, Valley, the Lincoln Ir Warwick-McVille and the James River rigation Districts.
No. 8326.
Supreme Court of North Dakota.
June 1966.
Rehearing July 20, Denied *2 Gen.,
Helgi Johanneson, Atty. and Paul Gen., Sand, Bismarck, for Atty. M. Asst. Conservancy District. Holand, Roy LaMoure, curiae. A. amicus *3 KNUDSON, Judge. pursuant to us
This matter comes 32-24, provisions Chapter North Dakota Code, Century upon questions certi- four LaMoure fied District Court of Gefreh, Adam County, the Honorable questions cer- presiding. The four Judge, Court tified to this Court District are as follows: Chapter 1. Is 384 [sic 348] Chap- Laws, amended 1955 Session Laws, now 412 Session ter 1959 Cen- Chapter 61-24 of North Dakota Code, provisions tury under the valid North Dakota and 13 of the Sections 25 Constitution, to 61-24—08 particularly as Century Code which and duties vests certain Conservancy District Diversion Garrison powers are in which such and the manner Diver- by said being exercised Garrison Master District sion Contract, “F”? Exhibit 4 Paragraph 61-24-08(9) and 2. Is § “Q”, resolution, Exhibit Page of adopted by compliance with “F”, Contract, valid Exhibit the Master provisions Section under all where Dakota the North Constitution Diver- lands located within pursuant there- Conservancy District sion regardless and taxed be assessed will an within are or not said lands whether Gar- irrigation district established Conservancy District? rison valid under 61-24-08(2) 3. Is § the North provisions of Section Constitution, purpose where the Dakota exercise of eminent taking or the provide waterways and is to domain which water canals flow, for the use which water is importance for private persons as well as vital benefit of cause before recreation, public purposes the Court.” such as wildlife, fish, re- game and ques- answered the Court provided programs, lated all as tions the affirmative and said “that the Contract, Exhibit “F”? the Master proper answers doubt but are vital Does the Garrison Con- great and of moment in the cause and will Chapter servancy District, if 61-24 of the principally determinative of said cause valid, Code is have and are not interlocutory frivolous or authority out carry nature.” provi- Master Contract petitioners set forth in their brief sions of of the North 61-24 the reasons presenting these certified Dakota Century Code? *4 questions to as Court, this follows: The District Court answered all of these
questions The questions certified the affirmative. before this by Court jurisdiction virtue of conferred proceeding by This was initiated the upon by the District Court 61-24-15 of Board of Directors of the Garrison Diver- the Code. While Conservancy by petition pre- sion District the Chapter mechanics 32-24 of em- were sented the District for LaMoure Court ployed to questions submit the before this County praying pre- that proceedings the Court, the underlying reason which liminary the making and incident to caused this submitted matter to be Master Contract between the Garrison Supreme necessity Court was and is the Conservancy Diversion District and the by provisions for same the reason and States, Three-way United and Four position adopted Master Contract and the among Contracts the Garrison Diversion by the United States Government. States, Conservancy District, respectively, Dickey-Sargent, and the the questions are not of an interlocu- Valley, Lincoln the Warwick-McVille tory nature, they They nor are frivolous. Districts, Irrigation River James great importance. are of The entire Gar- levy assessment and of a tax meet rison Diversion of said Garrison Diversion Project rests a favorable determina- contracts, Conservancy District under said questions tion of Pursu- submitted. special all taken in actions connection provisions the Master ant Con- therewith, examined, approved be and con- by position tract and firm taken by hearing firmed A court. was held Government, impera- United it is States thereon, provided by law no- due questions tive that consider the Court tice, testimony at which time and docu- favorably certified thereon so and act mentary evidence was introduced and re- project that the has been in the by ceived appearance court. No adverse embryo many years stage can now was made or writing person filed in or in reality. imposed become a The condition by anyone. The proceedings by taken by the in its United States Government firm stand is have no control one that we were approved by reviewed and the District we, e., If of North over. i. the State Court, Court. The upon the motion of the Dakota, wish have the Garrison Diver- petitioner, questions certified the four sion Conservancy Project, these are the this Court for “deeming determination conditions it can obtained. under which issues depend principally before wholly upon applicable thereto, necessity approval law obtaining interpretation construction contract the Su- confirmation this applicable great preme laws are moment Court of of North Dakota the State
oo ap- proceedings for the Accordingly, the Holand, amicus Roy Mr. A. stated contract of this proval and confirmation
curiae, as follows: brought in the District Court were recognized well its broad and Under 61-24-15, certified provisions resources develop natural power to under the questions presented to this Court has nation, United States of this 32-24, provisions entitled “Cer- proposed to build the Garrison Supreme Question Law tification project multipurpose is a This Unit. Court.” water develop resources of which will any be certified Any question comprising the Garri- of the area and soil court, the issue the district where cause in purposes son District. principally or depend will of the same irrigation, project this served applicable of law wholly on the construction supply, water municipal and industrial interpreta- thereto and such construction development recrea- wildlife fish and vital, great tion or of is in doubt and replen- development including the tional cause, in the in accordance with moment of lakes improvement ishment follows: project area. issue, any at civil or cause is Where authorizing the construc- Legislation criminal, county court or district stages project this initial in this jurisdiction court with increased in the act passed Congress *5 was state and the of the same will de- issue 433). In order (79 August Stat. pend principally wholly con- steps neces- proceed further with thereto, applicable struction law way, there sary get construction interpretation and such construction or done that had to be things certain were vital, is great in doubt and or of moment Conservancy and by the Garrison cause, court, judge in such or- This included local water users. application the.attorney on the for the coun- district and ganization irrigation plaintiff cause, or defendant in a civil and approval pro- ty park boards and application attorneys organized in by irrigators posed contracts plaintiff and defendant in a crim- comprising at least irrigation districts cause, proceedings may halt all until inal step accom- 100,000 has been acres. This question been shall have certified signing plished the elections supreme by to the court it determined. irriga- proposed by the four contracts referred in tion districts who are question The certification of the is in the these three-way mentioned in contracts judge, sound discretion of and the the trial proceedings. supreme may court to consider the refuse merely frivolous, if it is inter- same or is requirement second is that of exe- locutory nature, in its or otherwise not cuting a master contract between importance sufficient determine the issue United States and the Garrison Diversion bar, by at provided the cause 32-24- approval District and the 02, as follows: confirmation of this contract criminal, actions, Supreme In all both civil Court of the State of North- necessity certifying Dakota. The the matter of shall approval for such be in trial into the sound discretion of the is written contract and is itself supreme necessary judge, and the court refuse prerequisite insisted as a frivolous, United consider same if it is provided It is States. also nature, merely is interlocutory its pro- for North Dakota statute and the importance not of to be otherwise cedure is outlined therein sufficient followed at determine the issues in the cause in 61-24-15 of bar. Code. Traill, therein: Richlan'd heretofore what scribed have considered
We Steele. required in the consideration certified permitted under
questions of law IV. v. Grand City In of Grand Forks
32-24. N.W.2d County, (N.D.1965), 139 Forks That construction initial stages 242, 248, at we said: of the Garrison Diversion Unit of the Project Missouri River Basis was [sic] its first exercise must The trial court authorized Congress the Act of ques- determining that the discretion 5, 1965, August (79 433). Stat. tions to he doubtful certified case appear that the must be made V. wholly or depend they arise law construction of principally upon the 5, 1965, That on plans November certified. applicable questions [Ci- the construction of facilities and works tations omitted.] of the said Garrison Diversion Unit were Secretary filed with the of the Garrison dearly questions of law must be by rep- distinctly stated. omitted.] [Citations resentatives of the Bureau of Reclama- They fact questions should not involve thereupon tion and that the same were or mixed law and fact. omit- [Citations open made inspec- available ted.] tion. opinion proceed- We are of the that the ings requirements here met with the VI.
Chapter 32-24, N.D.C.C., and we will there- That on November peti- proceed questions. fore to answer the tioners, as the Board of Directors of the pertinent parts Findings *6 representative were notified concisely Fact which set out the factual Bureau Reclamation that as a condi- background of this matter are as follows: precedent to the initiation of con- Unit, struction of the Garrison Diversion III. necessary would be Garrison That the Diversion Garrison Conserv- Conservancy Diversion District to enter ancy Legis- District created was following principal into the contracts as lature of of North State Dakota guarantor repayment and of a 1955, (S.L.1955, 348, Chapt. sec. now part cost incurred or be incurred provide NDCC), construction, operation and main- development more effective and utiliza- tenance of said works Garrison tion of the land water resources Unit: Diversion Dakota, the State of North Master 1. Contract between the Gar- construction of the Garrison Diversion Conservancy rison Diversion Proj- Unit of the Missouri River Basin States; and the United ect, original encompassed said Barnes, counties, following to-wit: Three-way among 2. Contract Benson, Bottineau, Cass, Eddy, Dickey, Conservancy Dis- Garrison Diversion Forks, Lamoure, Foster, Griggs, Grand trict, States, Dickey- the United McLean, McHenry, Nelson, Pierce, Ram- District; Irrigation Sargent Sheridan, sey, Ransom, Renville, Sargent, Stutsman, per- Wells, Three-way among Ward and and as 3. Contract chapter Conservancy mitted Dis- of said Garrison trict, following States, counties became a and the Lincoln the United District; de- procedures Valley Irrigation district said under to, approving duly adopted a resolution among Three-way Contract the Gar- 4. District, contracts. such rison Diversion States, the United and the Warwick- VIII. District; Irrigation McVille 1965, 24, pursuant That on November among Three-way the Gar- 5. Contract to sec. of the North 61-02-26 District, rison Diversion con- Century Code, plans, purposes and States, River and the the United James respect to the said templated action with District; Irrigation said and the Garrison Diversion Unit submitted proposed contracts were five that the form and content said con- Commis- to the State Conservation Water study by tracts has been peti- 10, thereafter, December sion which on tioners predecessors or their since Janu- 1965, purposes, ac- approved plans, said 25, ary tion and contracts.
VII. IX. 1965, That 19, on November the Board 26, 1966, pursuant to January That on of Directors of the Garrison Diversion duly resolution of the Board enacted Conservancy District, by duly resolution Con- Directors said Garrison Diversion duly enacted at a convened and conducted District, servancy said Master Con- meeting, called hearings three said duly behalf of tract was executed on Jamestown, said contracts at Harvey and Conservancy Dis- Lake, Dakota, Devils at the hour States;' and that trict the United of 10:00 14, a. m. on December 15 and thereafter, Three-way Con- said Four 16, 1965,respectively; that notices of said similarly executed on behalf tracts were hearings hour, date, place of their site, anyone the fact that interest- Dickey- and, respectively, the ed in or affected such contracts could 1966, 1, March Sargent District on appear cause, any, why show if 1966, March Valley District on Lincoln proposed contracts should or should not the Warwick-McVille James an4 approved thereupon published were March Irrigation Districts on River 2, 1965, on December newspapers five party being thereun- executing each of general circulation within the Garrison duly authorized accordance with Diversion Conservancy District, said applicable; and that statutes *7 newspapers being Fargo the Forum of execute same prepared is and will States Fargo, County; Cass the Forks Grand contracts upon approval of said Forks, Herald of Grand Grand Forks Courts. County; Minot, Daily the Minot News of County; Ward the Devils Lake Journal X. Lake, of Devils Ramsey County, and 1966, following January That on [, Sun of Stuts- Jamestown Jamestown of contracts, Board County; execution of said that on December man] Con- 16, 1965, Diversion and Directors of said Garrison public hearings said three and duly called duly servancy at a respectively were and held and con- adopt a resolution did Jamestown, meeting, ducted Harvey at Devils convened and upon all Dakota; and levied Lake, tax assessed North that a that on December said Garrison 16, 1965, property within of the taxable said Board of Directors di- Conservancy and the Garrison Diversion Dis- annually on levied trict, rected that such tax be considering after and con- terms of taxable valuation proposed contracts, each dollar ditions of said and said support objections there- therefor and provided District until the contract in was district shall be “[s]uch governmental agency, body politic have or a sufficient fund and paid, been same; pay corporate that a the authority accumulated and to exercise with copy powers specified chapter, certified of such resolution was this county thereupon auditor reasonably implied.” mailed of county each said Garrison Diversion Legislature declared that the Gar- District, whereupon each said is rison Diversion spread obliged auditors became public purpose for a where- levy specified in for the such resolution ' Legislature said: year annually current and thereafter required by such and the resolution It hereby is declared that more ef- applicable. statutes development fective and utilization
the land and water resources this state, protection preservation and of the XI. therefrom, great- opportunity benefits States, That the United its health, er security, protection economic Interior, Department resolution of the enterprise, promo- and and the taking compelled posi- has been and is prosperity tion of the general wel- validity tion that the of the legality people fare of all of the proceedings leading making involve, require the exer- necessitate including contract and the Master sovereign cise of the state Contract entered into the United public purpose, and concern a the accom- States and the incor- G.D.C.D. which plishment which, things, among porated Three-way among Contracts demands, hereby neces- and it declared States, G.D.C.D., the United and re- sary, that the Garrison Diversion Unit spectively Dickey-Sargent, the Lin- Project Basin Missouri River Warwick-McVille, coln Valley, the approved Congress authorized act of Irrigation Districts, River be sub- James 887), (58 December Stat. judicial mitted for a determina- definitive amendatory supple- acts thereof and approval petitioners tion and to which the mentary thereto, be and con- established acceded, and that so unless reviewed structed : approved, the contract not be bind- economic provide for the future To ing States, the project people prosperity welfare and jeopardized would be appropriation as to state, particularly of this might implemented and the project not be residing people embraced in the area without further corrective action. conserv- within the boundaries chapter; ancy created this district XII. irrigation provide 2. To That the G.D.C.D. is required to ex- lands the sections within ercise of eminent domain to ' periodically district with afflicted acquire lands which canals and *8 drought, produc- to and stabilize the waterways to be are constructed thereon; crops tion of which water will flow and that said land acquired private serve to beneficial the replenish 3. To and restore de- persons public as as purposes well such as pleted lakes, rivers and waters recreation, game and life, wild and other district, streams and stabilize such related activities. streams; the flow of said The Garrison Diversion Conservancy waters, replenish 4. To and the District was Legislature created Lake, the Stump restore the level of Devils under the 61-24-02, Lake; Lake, where- Lake Williams and Turtle
S. To make available within the dis- Am.Jur., Irrigation, 60. trict, the Mis- waters diverted from authority housing The establishment of domestic, irrigation, souri River for municipal cooperate with authorities needs, municipal and industrial and for slum clearance and the aid afforded with hydro-electric power, recreation and sanitary, the Act low- Federal to build public other beneficial and uses. dwellings, upheld rent as has been consti- Authority of tutional. Ferch v. Housing Legis of our declaration County, supra. Cass the projects are devoted to lature that such public use, necessarily conclusive while not upon conferred and duties courts, great weight. the is entitled to of directors district board the inter prerogative not of courts to It is consideration, as are necessary for our legislative finding unless fere with the follows: clearly and with appears to be erroneous power of eminent 2. To exercise v. Ferch reasonable foundation. out provided the manner domain County, Authority Housing of Cass Remedies for title 849. Judicial N.D. 59 N.W.2d securing acquiring and purpose of public has public purpose A or business interest, or title, estate any right, objective promotion of for its carry necessary out easement morals, health, public safety, general wel- chapter, and imposed by this duties fare, security, prosperity, content- and necessary acquire the particularly to ment all the or residents inhabitants construction land rights in for division, as, political for given within a canals, hydro- reservoirs, dams, example, state, powers of sovereign any systems plants, irrigation promote pub- which are exercised to conservation, other device purpose public lic or business. water, storage and use of to such right of access secure Frazier, 176 N.W. 44 N.D. Green v. public right works and the 11. impounding access the waters established Irrigation districts therefrom; thereby emanating or upheld as generally are laws of State funds, property serv- accept 3. To constitutional. assistance, financial ices or other organization providing for Statutes state, and otherwise, federal, or from government of such districts private for public sources other or the mode of assessments regulating promoting purpose aiding and pursuant to are enacted the lands therein construction, maintenance to act for state operation of the Garrison Diversion welfare, words, police public Unit, part thereof; or usually as con- power, and are sustained by- state and federal stitutional both many co-opera- instances acts have furnish assurances of
courts. Such To guarantor upheld against principal the contentions been contract, legislative they improperly delegate or or either to enter into a judicial power, right contracts, due or violate the with States law, permit America, process taking any department agen- private thereof, cy corpora- use. established and with per- upholding rules the balance of a statute tions North Dakota partial invalidity applied despite formance entered into *9 relating laws irrigation to the creation of with the United for the con- States struction, operation districts. or maintenance
91 of works the Garrison Diversion 10. To enter a of into or contract contracts River Unit Missouri Basin for supply of a of from water Project as Act of Con- sell, defined United States lease and gress, approved December otherwise any contract to furnish amendatory (58 887), and acts Stat. such water for beneficial use ir- thereto; supplementary rigation thereof or districts, persons or other [*] Chapter [As [*] amended [*] § 2.] [*] Session [*] Laws, [*] 11. To tract for the operate district; private corporations and maintain operation or to mainte- with- con- irrigation supply nance of water thereafter year and each 9.In serving works and uses within lands one mill exceed levy of not to a tax district, and there- in connection of taxable annually on each dollar with, fund to to maintain reserve pay- for the in the district valuation oper- major meet of unforeseen costs district, expenses ment of the * * ation maintenance *. to, per including, but not limited of expenses diem, mileage and other the inquiry first raises administrative, directors, .technical, Chapter whether 61-24 of the North Dakota ex- clerical, other operating Century Code, particularly as to § office, and penses of the district vesting powers certain and duties continuing for cumulation of Garrison Diversion levy per- fund such the manner in which such into formance of entered exercised, being provision is valid under the of America with the United States of 25 of the North Dakota Constitution as construction, in connection with the being delegation legislative an unlawful operation and maintenance of works power; and provision under the 13 of of the said Garrison Diversion Unit being Constitution Project. of the Missouri Basin River process violation the due lawof clause moneys pursuant All collected of the North Dakota Constitution. deposited levy shall be in the Bank North Dakota to the credit willWe first consider the first the district and shall disbursed question No. 1 whether 61-24 of only as herein provided. board the North Dakota Code is an un- may hand, any invest funds not delegation lawful legislative powers un- needed immediate disbúrsement der 25 of Constitution, the North or which are held reserve for legislative which vests power Legis- payments, future in bonds lature, and in people by the initiative and States, mortgages United bonds the referendum. or payment securities guaranteed by which is 138b, In Constitutional Law § C.J.S. States or an or instrumentality relating delegation legislative thereof, agency or bonds certificates powers, it is said: state indebtedness of North any political Dakota or of its subdi- legislature may delegate to execu- visions. The amount which tive officers or bodies to car- levied in year operating ry one relating out'^the details of statutes prior the district hydro-elec- authorization storage, to water irrigation, Congress of tric, projects flood drainage control Project districts, percent shall pollution, not exceed ten navigability water permissible; maximum of waters. *10 carry out and delegate agents to may to state legislature execu- purpose. perform power a state function agencies the to ad- officers or tive power be dele- legislative cannot relating to creation While statutes minister officers, hydro- gated to local boards or operation storage, water may legislative bodies, legislature electric, or drain- than irrigation, control flood ad- delegate boards or officers performing In to such age projects or districts. ministrative in out the function, they empowered carrying functions may such be to statute, gov- discretion, purpose of and various including a exercise broad powers oper- efficient ernmental for the more determination of facts on which the laws, they provided primary a depends; ation of but can- administration of statute guid- empowered strictly for their leg- not be to standards are established exercise powers ance, performed arbitrary duties islative uncontrolled where to principles, there Applying solely discretion. these local ministerial boards are are, illegal particular delegation legislative statutes is no statutes have been, power, held the exercise of notwithstanding authorize an ad- valid which require body may such duties consideration plan ministrative officer or to carry comprehensive delegating out program changing a conditions. Statutes projects, legislative powers water are par- to to determine whether local authorities projects subject general presumption ticular water in to the fulfill * * * * * purposes validity, statute, but are *. favor their strictly any great-
to against construed power than delegation legislative er Legislature may delegate to used. governmental clearly appears language local from the agencies power to legislate as to local in affairs the absence prohibition of a In Constitution. V, Article 130 of the North Da Constitutional delega Law organiza C.J.S. provides kota Constitution legislate to as to local affairs is dis corporations municipal tion of and fixes cussed : powers. nothing their in this There is restricting Section Constitution in prohibition In the of a absence duty. Legislature in the exercise of that delegate legislature may constitution may It powers limit or withdraw such power governmental agencies
to local power municipality place vested in a legislate affairs. Statutes to as to .local it if so de agency with another power strictly delegating con- such are Authority sires. Cass Housing Ferch v. strued. County, supra. prohibiting doctrine general no powers has legislative delegation of A and discussion of further review powers vesting of to application power delegation legislative the unlawful created political subdivisions Am.Jur.2d, Constitutional contained the ab- In government. local purpose of Law, 250, 500: page inhibitions, the sence of constitutional rule, supported with appropriate It is well-settled may delegate legislature authorities, authority practical unanimity by the governmental agencies local affairs, prohibiting the general doctrine respect local legislate with no authority has by-laws, delegation legislative ordi- and enforce such frame political sub- application vesting regulations, as are incident nances, and govern matters carry divisions of out self-government, and local great scope. which, limited For although local certain functions are, variety governmental performance, purposes scope, in their their may delegate a legislature im- functions the sovereignty. an It exercise of subjects pose authority its local organizations over on such *11 boards, county municipal corporations, before having jurisdiction tribunal of legis- bodies within the cause. departments. In lative classification of Am.Jur., Law, 12 Constitutional 573. § frequent of addition to the most exercise municipalities, power, this in the case of A review of the record indicates that principle employed to sus- this has been process requirement due been in has met ordinarily delegation powers tain a of respects. all The Garrison Diversion Con- by legislature only to such exercisable servancy District organized has been in com- committees, park township subdivisions as pliance provisions Chapter with the of 61- commissioners, districts, school and coun- 24. The formation of the Master Contract county ties or boards. and the Three-way Four Contracts has accomplished been compliance in strict with ques- of We will now that consider the statutes. 61-24, Chapter 1 tion No. whether are opinion We that the Code, proc- Century Dakota due violates the Chapter 61-24, of provision ess the North Dakota Consti- of Code, particularly which § 61-24— tution, relating particularly § powers vests certain in duties the Gar- powers and conferred the Garri- duties rison Conservancy District, and its son the manner powers being in which such are in by manner 61-24-08 and the directors § by exercised said Garrison Diversion Con- being which exercised servancy Contract, in the Master such District the Master Contract. are not in violation of the North of § being Constitution an as unlawful Dakota, of Constitution North § * * * delegation legislative power, of nor in viola- 13,provides person “no that shall be tion of 13 of the North Dakota Constitu- deprived § life, liberty of without depriving person life, liberty process
due of law.” or property process without due of law. precise While it true that no defini- question is, yes. answer to No. 1 law,” phrase, process tion of the “due given, yet can be fre- the courts have Question levy 2 inquires No. whether the quently general phrase defined the promulgated by a one mill tax paragraph process terms. It that has been said due page adopted on Resolution law law must be understood to mean regular in course administration compliance au- 61-24-14, with and § justice according courts thorized 61-24-08(9), is valid those rules and forms have been provisions of 176 of the North Dakota private protection established Constitution, within where all lands located * * * rights. general A law adminis- subject District will be legal according tered in its course the tax whether or not such lands are with- procedure proper form of suitable and in an established irrigation district of case, conformable nature to Conservancy District. right rules fundamental and affect- levy of this tax is authorized §§ persons ing alike, process all is due 61-24-14 and subsection 9. How- law. ever, it necessary is not pass us validity levy of this tax as Law, 12 Am.Jur., Constitutional require Master this Contract does not process The essential elements of tax be due levied. The answer to this opportunity of law are notice and an to be would not determinative but issue orderly pro- merely heard advisory. and to defend in an would be Therefore, we adapted ceeding question. nature of the case decline to answer this 4 are an- 32-24, providing Questions numbered 3 and N.D.C.C., Question num- questions of law the affirmative. swered certification contemplate bered 2 we decline to answer. Supreme Court does not opinions to making advisory of mere proceed- further The case is remanded for the trial court. ings conformable to law. *12 Forks City Forks v. .Grand of Grand ERICKSTAD,
County, 139 (N.D.1965), TEIGEN, N.W.2d J.,C. MURRAY, JJ., concur. STRUTZ exercise Question relates No. 3 in the domain power of eminent vested the Rehearing for On Petition Conservancy District Garrison taking purpose of 61-24-08 for the § KNUDSON, Judge. provide to domain the exercise eminent a petitioners request rehearing or pur- a and for other waterways and canals 2 question reconsideration of certified No. Diver- poses the Garrison conferred opinion statute, we to and as which declined answer Conservancy District sion for that the Mas- the reason stated therein provided the Contract. for in Master levy the require
ter did not Contract resolution, tax levied and that heretofore held the Garri haveWe deter- question to not be this would answer a Conservancy District is son Diversion merely minative of issue but would cor body governmental agency, politic and advisory. porate authority exercise to with Chapter pro specified in this that However, petitioners inform us public by 61-24-02, that it vided is “assessment,” paragraph in the term as used power purpose, has the same and as such it in- 24 is of Master Contract meant to State as the to exercise eminent domain taxes,” “general property well as clude In itself, any department thereof. improvements. for local assessments Cowell, 97 N.W.2d (N.D.1959), Kuecks v. 24, Paragraph page 16 of the Master 849; Telephone Co. in Bell Northwestern Contract, reads as follows: 245; Wentz, N.W.2d (N.D.1960), v. 103 126 Hjelle, (N.D.1964), and Chandler v. C-District shall cause to be levied Depart 141, Highway State N.W.2d tolls, assessments, necessary collected all right eminent domain to exercise ment’s all charges, and will use upheld. was to authority and resources of C-District obligations meet to make C-District is, yes. question to No. 3 The answer payments pursuant in full be made all to date to this contract on or before the Question No. 4 relates to the author payments meet become due and to ity of the Garrison Diversion contract. its other this provisions carry out the to under the Master Contract instance term “assessment” this general of the North 61-24 includes is used a broad sense. It Code. property taxes and is not limited to assess- special improve- normally ments made in the Master held that Having heretofore districts, though some are includ- ment even naturally that Contract is valid it follows ed herein. Conservancy Dis- the Garrison Diversion Contract, trict, “general has As the term taxes” party is a to “as- Therefore, meaning term power carry comes within the to it out. paragraph above question is, yes. 4 sessment” as used No. answer require expenses govern was intended this local language defray improvements Dis- pay local ments and In authority trict to use its full resources made for the use and benefit. levy general property more power tax not tax this has been compliance counties, cities, than one mill in with 61-24— delegated villages by 61-24-08(9). townships. and as authorized this passed This court has v. Park Vallelly Board of Com coupled The term “assessment” with missioners, L. N.D. N.W. authority language, “and all of the will use R.A.,N.S., 61, wherein we said: ** sources of C-District leaves no doubt conditions that one of the conceded, It and could not reason- the contract is that the Garrison Diversion levy ably doubted, its assert all of District will legisla- legislative power. taxes is *13 power the taxing to meet the of power by tive is the vested Constitution contract. Representa- in the and House of Senate people tives. in in- the the [And question It is called to our attention that * * * It itiative and the referendum.] portions 2 phases, No. contains several general pow- is a principle legislative that questions may separately which be stated excep- ers A delegated. general cannot be as follows: legislative tion exists to the effect that Part 1. Is of subsection 9 61-24-08 powers may delegated to § be in reference delegation power a of ? legislative valid of local government matters concern. power by The municipal of levying taxes procedure adopting Part theWas corporations governmental agen- levying property the Resolution a tax may cies be delegated; and 130 of section valid ? recognizes plainly the Constitution the by Part 3. the power Was tax levied the Res- Legislature delegate to * ** piece on property olution each valid power corporations. of municipal though property may even lo- the be not well-recognized It prin- has become a within irrigation cated the an district of ciple of constitutional that local law Garrison Diversion Dis- by people boards and elected the councils trict ? may power to tax bodies to which the already We have that indicated subsection princi- delegated. be is so the This valid, 9 of 61-24—08 is as we held 61-24— § § ple legislative power levy taxes the 08 to a delegation legislative be valid of and, people; long rests with the as the so power in ques- our affirmative answer to of people in have voice the selection However, tion 1 opinion. No. in the main power bodies to which the to tax is dele- a further concerning delega- discussion the gated, is the constitutional restriction by legislature power tion the the taxa- of of not violated. tion political to minor subdivisions of the The the directors of appropriate. state would be by District are elected the right taxation, The of people in the within inherent of several counties the people, has body been legisla constituting vested thus a board of a by ture general may Constitution. politic by people a As rule elected whom this sovereign power taxes,, incap delegated authority levy taxation is being able delegated by legislature. prescribed legisla- within the limits is, It however, a well-recognized exception ture. of the rule in the case of political minor state,
subdivisions of usually which are question answer 1 of power vested with the providing is, revenue 2 yes; No. power we hold that 96 Constitu- directors
authority conferred on the § be uniform requiring that taxes shall Conservancy District Garrison property within same class of levy a tax 9 of 61-24-08 subsection § taxing district. on territorial limits of the annually mill each to exceed one not district is dollar of taxable valuation proceeding and This not at issue delegation legislative a valid question give answer we the North Dakota not violation of 25 of not merely advisory would would be Constitution. the issue. determinative of adoption proceedings for the Therefore, part of decline to answer we directors resolution question No. 2. levying annually No. one mill To general tax of summarize our answer to general property say: levy each dollar of taxable valuation we require- pursuant conformance with the tax 61-24-14 61-24- district in was §§ 61-24-14, 08(9) have constitu- ment of authorized we held be a which ex- delegation power, have been the exercise subsection tional process. com- we find held in strict in accordance with due amined and were was pro- providing However, specific pliance whether instances with the statutes in accord- violative levy to be followed and were enforcement of the would be cedure rights par- process. aggrieved due reserved to *14 ance with of certain ties under 176of the Dakota Consti- §' is, part question No. answer to proceeding tution not issue in this is at yes. any opinion at this time would therefore merely advisory. question 3 of We come now petition rehearing is denied. question tax posing the whether the No. piece property even is valid each though an not located within TEIGEN, J., C. and MURRAY Conservancy Dis irrigation district of the STRUTZ, JJ., concur. trict. ERICKSTAD, J., being
The answer involves absent to this from special aggrieved parties participate. not rights reserved to State did