143 N.W. 768 | N.D. | 1913
The relator filed a brief and appeared in person on the argument in this court. The defendants neither appeared nor filed a brief, but Mr. George A. Bangs, an attorney of Grand Forks county, made application for leave to submit a brief on behalf of the state auditors’ association, whatever that may be, and he was permitted to do so, and we refer to and consider his brief the same as though it had been filed in behalf of respondents. lie makes certain joreliminary objections to a consideration of the matter, which will be disposed of before we turn to the question of whether the county or the auditor is entitled to the fees in question.
1. lie asserts that the relator is not a party beneficially interested as required by § 7823, Eev. Codes of 1905, and therefore cannot maintain this proceeding. lie argues that the acts sought to be compelled are governmental functions in which no one citizen has any beneficial interest or is directly affected. We have carefully examined the authorities he cites, but this question has been passed upon repeatedly by this court, and the relator, as a resident, citizen, and taxpayer of the county is qualified to act as a relator in this proceeding.
If the duty enjoined by the statute upon the county commissioners to audit or adjust the accounts of the auditor includes auditing or adjusting the items composed- of fees received for certifying to abstracts and deeds, it is a public duty and one in which all the taxpayers of the county are interested. State ex rel. McDonald v. Holmes, 19 N. D. 286, 123 N. W. 884; State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Schilling v. Menzie, 17 S. D. 535, 97 S. W. 745; State ex rel. Dakota Hail Asso. v. Carey, 2 N. D. 36, 49 N. W. 164; 26 Cyc. 404 (II) and authorities cited; 26 Cyc. 407, note, as to taxation; Union P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428; State ex rel. Romano v. Yakey, 43 Wash. 15, 85 Pac. 990, 9 Ann. Cas. 1071.
2. It is urged that the acts sought to be coerced are discretionary and that hence mandamus will not lie. Sec. 2428, Eev. Codes of 1905, reads: “All treasurers, sheriffs, clerks, constables, and other officers chargeable with money belonging to any county, shall render their account to and settle with the county commissioners at the time required by law, and pay into the county treasury any balance which may be due the county. . .
We are. now dealing with the act of adjusting the accounts of the auditor as they relate to the fees in question. It should be observed that the statute provides that if a person chargeable shall neglect or refuse to render true account, or settle, the board shall adjust the accounts of the delinquent. We are not concerned with how they shall be adjusted, that is, we are not permitted to determine that any specific sum is due, or that the commissioners shall find any sum due in case the facts alleged in the petition of the relator are found to be untrue; but on the facts as stated it is the ministerial duty of the board to examine and adjust those accounts, including the items in question, if the items belong to the county rather than to the auditor. The only thing required of the commissioners is the ministerial duty of acting upon the facts set forth in the petition and which are alleged to be within their knowledge, namely, that there are such items and that they have not been accounted for, and to proceed to make an accounting or an adjustment, and thereby determine, according to the best information they can obtain, the amount of such items unaccounted for and unpaid to the treasurer, if any.
While it is true that the subject of the controversy pertains to the fiscal affairs of the county, yet this does not alter the situation when the board refuses to perform its ministerial duty. The terms of the statute quoted above are mandatory. The taxpayers of the county are entitled to know, and the legislature contemplated that they should be informed, as to the amount of fees collected and unaccounted for, and while the courts cannot direct- the findings of the board they can set the commissioners in motion by directing them to proceed and investigate and ascertain by computation whether anything is due, and if so how much of the county’s property has been retained by the auditor.
3. It is next urged that the writ will not lie, because there are other adequate remedies provided by statute, viz., those authorizing proceedings for the removal of officials who fail to perform their duties; and criminal prosecution. We think counsel labors under a misapprehension of what is meant by other adequate remedy. The provisions for the removal of officials and for criminal prosecution furnish no remedy whatever to the taxpayers or to the public for the diminution of the funds of the county. They simply serve as a warning, and tend to prevent a recurrence of the neglect or refusal, and to punish the officials for their dereliction. Such proceedings would not replenish the public treasury nor provide additional funds for conducting the public business, nor would they diminish the taxes assessable against the property of the taxpayers of the county. They furnish, in a measure, a remedy for the crime committed, if any, but no civil remedy. Hence we say they furnish no remedy in the statutory sense; and, if doubt exists, that doubt should be resolved in favor of the solution of the question which will afford a remedy. 19 Am. & Eng. Enc. Law, 747; State ex rel. Cutter v. Kamman, 151 Ind. 407, 51 N. E. 483; 26 Cyc. 173; Temple v. Superior Ct. 70 Cal. 211, 11 Pac. 699.
Kerr v. Superior Ct. 130 Cal. 183, 62 Pac. 479, is cited as an authority, but we deem the dissenting opinion of the chief justice and Judge Temple to state the better reasons. In any event, the reasons given, in the majority opinion, if in point, are in conflict with
Both parties devote considerable space to attempting to establish that the state’s attorney can only bring an action against the auditor on the facts alleged, when directed by the county commissioners so to do. They agree on this question; hence we do .not examine it, and express no opinion thereon further than to say that this is apparently in accord with the statute and seems to be supported by authority. See §§ 2428 and 2430, Rev. Codes of 1905, supra; Kerby v. Clay County, 71 Kan. 683, 81 Pac. 503; Looscan v. Harris County, 58 Tex. 511; State ex rel. Rosbach v. Pratt, 68 Wash. 157, 122 Pac. 987.
We now appi'oach the important question in this case, viz., to whom do the fees collected by the auditor for certifying to deeds and abstracts ■belong ? Are they the property of the county or of the auditor ? The difficulty in determining this question arises largely from the apparent conflict between the provisions of chap. 70, Laws of 1907, and chap. 219, enacted at the same session of the legislature. While chapter 70 precedes chapter 219 in the published laws of that session, this is purely accidental, and in no manner indicates which was intended to take precedence. The chapters in the laws of that session are numbered and arranged alphabetically with reference to subject-matter, and chapter 70 is under the title, as arranged, of “County Officers,” while chapter 219 is under the title of “Kevenue and Taxation.” In fact,, chapter 219 was introduced and passed prior to the passage of chapter 70, and likewise was approved before the approval of chapter 70, the latter having been approved by the governor on the 14th of March, 1907, while chapter 70 was not approved until March 19,' 1907. Neither chapter contains any emergency clause. Chapter 219 is entitled, “Bequirements of Tax Deeds,” and is an act to amend § 1597 of the Bevised Codes of 1905 relative to the duties of county auditors, and requires such auditor, when any deed is presented to him for transfer, to ascertain from the books and records of his office whether there are any delinquent taxes, special assessments, or tax sales on the land covered by the deed, and prescribing the certificate which the auditor is required to make on such deed as applicable to the facts found, viz., that he shall enter on every deed of real property so transferred over his official signature, “delinquent taxes and special assess
Sec. 1278, Rev. Codes of 1899, was enacted as chapter 135 of the Laws of 1899, the subject of which was, “Auditor’s Certificate Required,” and was an amendment to chapter 126 of the Laws of 1897. This chapter 135 concludes with this provision: “The county auditor shall keep a record . . . and shall receive 25 cents for each certificate from the person or persons presenting the same for certification, and shall cover the same into the county treasury for the credit of the county general fund; provided, in counties in which the auditor is not paid the maximum salary allowed by law, said auditor may retain such fee as compensation for making such certificate.” Chap. 135, Laws of 1899, was enacted to amend § 95 of chapter 126 of the laws of 1897, which contained the unqualified requirement that the auditor should cover the fee into the treasury for the credit of the general fund, and
Chapter 70 of tbe Laws of 1907, heretofore referred to and here in question, is entitled “Salary of County Auditor,” and provides that “tbe salary of tbe county auditor shall be regulated by tbe value of tbe property in bis county as fixed by tbe state board of equalization for tbe preceding year, as follows :■ Provided that no county auditor shall receive more than $1,200 for bis personal services in any one year in counties where tbe valuation of taxable property is less than $1,500,000, nor more than $1,400 in counties where tbe assessed valuation exceeds $1,400,000, but does not exceed $2,000,000.”
Then follow provisions like tbe last, increasing tbe salary between certain valuations in counties of higher valuation until tbe last provision is reached, which is: “Nor more than $2,500 in counties where tbe assessed valuation exceeds $12,000,000; and all moneys received as fees for certifying to abstracts or deeds in excess of tbe salary as limited by this article shall be paid by tbe county auditor at tbe end of each month into tbe revenue fund of the county.”
It thus appears that chapter 70 contains no positive declaration of tbe amount of salary that any auditor shall receive, tbe only statement on tbe subject being tbe one quoted, under tbe proviso providing
The Revised Codes of 1877 provided for no officer known as the county auditor, but by §§ 61 to 64 of chapter 21 of the Political Code it imposed upon the register of deeds the duties, ex officio, of county clerk, which duties were later transferred to the office of the county auditor, and are those now performed by that official. The compensation for the county clerk was fixed by § 8 of chapter 39 of the Political Code of 1877. That section, as far as material, reads: “For performing the duties of the clerk of the county commissioners and attending to the business of the county, the county clerk shall receive such salary per annum, to be paid by the county quarterly, as the commissioners of the county shall allow, not exceeding in any year the sum of $600.” In 1883, by chap. 1, Special Laws of that year, the office of county auditor was created for Pembina, Walsh, Grand Porks, Lincoln, Traill, Cass, and Richland counties, and the duties formerly performed by the county clerk were transferred in those counties to the auditor. Sec. 14 fixes their salaries as follows: . “The salary of the county auditors shall be regulated by the value of the property in their respective counties as fixed by the territorial board of equalization for the preceding year as follows: In counties where the amount of assessable property does not exceed the sum of one and one-half million dollars they shall be entitled to receive 5 mills, on each dollar of the first $100,000, and 1 mill on each dollar of all amounts in excess of said last-named sum, and less than $200,000, and one tenth of one mill on each dollar of all amounts in excess of said last-named sum; in counties where the value of taxable property for the preceding year, as fixed by the said board of equalization, exceeds the sum of one and one-half million dollars the county auditor shall be entitled to receive 5 mills on each dollar of the sum of the first $100,000, and -g- of 1 mill on each dollar in excess of such sum and less than $2,000,000, and £ of 1 mill on each dollar of all sums in excess thereof; . . . provided that no county auditor shall receive more than $1,500 for his personal services in counties where the valuation does not exceed $4,000,000, nor more than $2,000 for his personal services in counties where the
Section 16 provided that whenever the term “county clerk” occurred in any of the existing laws of the territory, it should be deemed and held synonymous with, and construed to mean, county auditor. Here we have the foundation for the phraseology of most of the enactments relative to the fees received by county auditors down to and including the session of 1907, and it is clear to the members of this court that the meaning of that statute was that the county auditors of the counties first mentioned constituted one class, namely those where taxable property did not exceed $4,000,000; the second class was all having property between $4,000,000 and $6,000,000. In the first class the county auditor received a salary not to exeeed $1,500, and if the percentage on the valuation did not amount to $1,500, then he was entitled to retain moneys received as fees sufficient to make his salary $1,500, and any excess of fees over that sum was to be turned into the revenue fund of the county. In the last class he was entitled to retain such fees sufficient to bring his salary up to $3,000; if the percentage amounted to less than that sum. Above $3,000, it was to be turned into the revenue fund,'but no auditor in the last class could receive, for himself, to exceed $3,000, regardless of valuation or amount of fees.
The next legislation on the subject is found in the Laws of 1885, when the legislature, by chapter 2 of Special Laws, provided for auditors of Brown and certain other counties; and by chap. 37, Special Laws of that year, auditors were provided for Spink, Stutsman, and other counties, and the- law creating the office of county auditor for the counties of Pembina, etc., above referred to, was made to apply to the auditors of the counties of Spink, etc. Thus stood the law until 1887, certain counties having auditors and others being without them, with their duties performed by the register of deeds under the title of county clerk. By chap. 10, Laws of 1887, a general law, the office
At the same session, chapter 135, relating to the auditors’ certificate to deeds, was enacted, to which we have heretofore made reference. The law fixing this salary seems not to have again been changed until the enactment of chap. 70, Laws of 1907, above referred to and here under consideration. After long consideration and careful investigation of the subject in an attempt- to harmonize chapter 70 and chapter 219, supra, we have reached the conclusion that the peculiar phraseology of chapter 70 was undoubtedly employed by the legislature by reason of having overlooked some of the changes made previously in the method of computing the auditor’s salary, and we conclude that the phrase: “No county auditor shall receive more than . . . dollars for his personal services in any one year in counties where,” etc., can, as the correlated laws now stand, only be construed as fixing the salary of the auditor in each county of the valuation by which his county is classified at the sum named, no more and no less. Bor instance where the valuation is less than $1,500,000, his salary is $1,200 per annum, and the maximum salary of $2,500 is the salary fixed for counties in which the assessed valuation exceeds $12,000,000.
We have thus given a history of the legislation, peiffiaps at greater length than is necessary, but because when act is compared with act we think it throws some light on the meaning of chapter 70, supra. It will be seen that the duties of the office of auditor were first performed by the register of deeds. His salary was fixed by the board of county commissioners. Then the duty was transferred to the newly created office, and the salary was at -first based on a percentage of the assessed valuation, and later the valuation was employed only for the purpose of classifying the counties with reference to salary, and an
Now what effect, if any, does chapter 219, supra, have upon the provision of chapter 70,-requiring the fees mentioned to be paid into the revenue fund of the county at the end of each month % It is elementary that when two laws relating to the same subject-matter are passed at the same legislative session they are to be construed together, if possible, so as to give effect to each, but if the two laws are irreconcilable the one which is the later expression of the legislative will must prevail. The provisions in question clearly conflict, and as clearly cannot be harmonized within the limits of any rule of reason. This being apparent, which provision controls ? Chapter 219, first enacted, as we have indicated, relates to the duties of the county auditor in certifying to the payment or nonpayment of taxes on deeds offered for record. The prime subject of the chapter is the requirement that there be such certificate. The object was to compel the payment of taxes. The permission given the auditor to retain the 25 cents fee is the last paragraph of the chapter, and is only incidental to the main purpose of the law. There is nothing in the chapter indicating that the object of its enactment was to either increase or diminish the compensation received by county auditors. It is a general law, dealing with a specific subject; namely, requiring the certificate of the auditor to deeds before they can be entitled to record. Chapter 70 is a general law fixing the salaries of county auditors. It is general in the sense that it applies to all county auditors, but it deals with only a specific subject. That subject is the salary of the county auditor. The purpose of its enactment was to readjust the salaries of county auditors, while the purpose of the legislature in enacting chapter 219 was to further regulate the requirements necessary to entitle a deed to record, by that means com-, pelling the payment of taxes before the transfer of lands, and serving as an aid in the collection of taxes.
It is also elementary that a statute, special in the sense that it deals
But it is urged that a proper construction of chapter 70, if repugnant to chapter 219, permits the auditor in any class of counties to retain the fees until they increase his salary to the amount allowed in the class
But it is next argued that all the auditors of the state have construed this statute as permitting them to retain the fees collected in addition to the salary prescribed, and that on the principle that a course of conduct indicating a common understanding by the administrative of
6. Having determined that the relator is qualified to act in that capacity, that mandamus will lie to set the board of county commissioners in motion, that the feos belong to the county, there remains hut one other question for consideration. It is sought, as we have shown, not only to direct the board to adjust the account, but also to instruct them to order the state’s attorney to bring suit against the auditor. Some authorities are cited holding that this is a matter within the sound discretion of the hoard, on which its members must exercise their judgment and determine whether a suit is advisable. Without holding that these authorities are not in point under our statute, we will say that we do not feel justified in holding that the board should at this, time be directed to order suit. The state of the law has been such that we cannot say that they have not acted in good faith, nor can we say that when advised by this court as to the ownership of the fees they will refuse to perform their duty in the premises. The refusal to order suit was undoubtedly grounded upon their opinion that there was nothing due the county by reason of the erroneous assumption that the fees belonged to the auditor, and it will be early enough to pass upon the power of the court to order the board to direct the state’s attorney to bring suit when the necessity for doing, so arises, if it ever does, by reason of a refusal or failure of the auditor to pay any sum found due the county after the adjustment, and the subsequent neglect of the board
The order of the District Court is reversed, and this case is remanded for further proceedings in accordance with law.