Lead Opinion
This is an application for a writ of mandamus which will command the defendant Wetz, as assessor of the city of Fargo, to list, assess, and place upon the tax rolls a certain Packard automobile, number 33,646, owned by one A. L. Moody, a resident and citizen of Fargo, which automobile is kept and used by him in said city; also commanding the assessor to list, assess, and place upon the tax rolls other motor vehicles of other descriptions owned, kept, and used by residents of the city of Fargo, so as to subject the same to taxation for the year 1918 as a part of the taxable personal property subject to the taxing jurisdiction of the city. The order to show cause issued herein is directed to George E. Wallace, H. H. Steele, and F. E. Packard, as members of the State Tax Commission, having supervision of the administration of the tax laws of the state.
In the affidavit and petition, it is made to appear that the city commission of the city of Fargo directed the defendant Wetz to assess the property above referred to, and that Wetz refused to do so, basing his refusal upon chapter 156 of the Session Laws of 1917, the same being an act providing for motor vehicle license fees, registration tax, etc. It is shown that the act contains a provision purporting to make the registration fee (excepting for dealers’ licenses) a charge which shall be in lieu of all taxes, general and local. It is further alleged as a part of the petition “on information and belief that the revenue which has been and will be derived from the registration with the secretary of state and the fee charged therefor, in accordance with the terms and provisions of said legislative act, will exceed by several hundred thousand dollars the expense incident and necessary to the carrying out of the provisions of said legislative act in such registration and in the issuance of licenses thereby provided for, and that, by provisions of. said act, revenue which, under the Constitution of the state of North Dakota, belongs to the villages, cities, counties, etc., is diverted therefrom and from use for the purposes for which such taxation is provided; that said act was passed with knowledge that the revenue derived from its operation would exceed by hundreds of thousands of dollars the cost of operating the department having charge of such registration and licensing and all the expenses incident thereto, and with and for the purposes of diverting any revenue to which such corporations were entitled under the provisions of the Constitution
It is further alleged that the act in question does not provide for assessing motor vehicles in accordance with their value, but that the fees are based upon arbitrary, inequitable, and unjust distinctions, and that the provisions of the legislative act are not uniform in their operation but are wholly arbitrary and unjustified. It is alleged that, under the provisions of the act, the city of Fargo would receive no part of the revenue derived from the registration tax, and that the motor vehicles of dealers are subject to assessment and taxation like other personal property, while similar vehicles belonging to others are not so subject.
The answer does not put in issue any facts material to the determination of the questions raised upon the application for the writ.
Section 1 of chapter 156, Session Laws of 1917, provides for the form of application for .a dealer’s license to be issued upon the payment to the secretary of state of $15. Among other things, the application is required to contain a statement of “the amount of such motive power stated in figures of horse power, in accordance with the rating established by the Association of Licensed Automobile Manufacturers, ...” Section 3, which amends § 2976g of the Compiled Laws of 1913, provides a minimum fee for the reregistration of motor vehicles of not less than $6, and, for those having a higher rating than 20-horse power, an additional fee of 50 cents for each additioxxal horse power, — subject to reduction, however’, in the case of vehicles which have been previously licensed for three years. In this section it is provided that “the registration fees imposed by this act upon motor vehicles shall be in lieu of all taxes, general or local, to which motor vehicles may be subject, except, that dealers’ license fees shall not be ixx lieu of other taxes.” Section 4, which amends § 2976h, Compiled Laws of 1913, provides: “. . . The secretary of state is hereby authorized to employ such agent or agents as may be necessary to enfoi-ce the provisions of this act.” Section 5, which amends § 2976n, Compiled Laws of 1913, provides that the
In view of the questions raised upon the argument, it will become necessary, also, to consider certain provisions of chapter 59, and, possibly, of chapter 131 of the Session Laws of 1917. Chapter 59 is an act which provides for the classification of property, for assessment at a percentage of its value, and by § 1 of said act, class 2 of the schedule adopted is made to embrace “all live stock, agricultural, and •other tools and machinery, gas and other engines and boilers, threshing machines and outfits used therewith, automobiles, motor trucks, and other power-driven cars, vehicles of all kinds, boats and all water craft, etc.” This class of property is required to be assessed at 20 per cent of its true and full value.
Chapter 131 of the Session Laws of 1917 provides for the establishment of a state highway commission which is given general control and supervision of the construction, improvement, repair, and maintenance of roads and bridges, under prescribed limitations. Among other powers granted the commission is the power to expend the state highway fund as follows: (§ 2) “. . . it shall
Counsel for the defendant, in apparent recognition of the constitutional difficulties in the way of sustaining the act in question, have suggested the possibility of harmonizing chapters 156, 59, and 131 by giving to chapter 156 a construction rendering it consistent with that portion of chapter 59 which places automobiles and power-driven vehicles in class 2 of the assessment schedule, and purports to subject them to ad valorem taxation at 20 per cent of their value. Counsel for the plaintiff manifests agreement to this construction, and professes to be interested solely in being able to subject the class of property referred to to taxation for municipal purposes. There is no appearance in this action on behalf of any owner of a vehicle affected by the legislation under consideration, and consequently no question is raised relative to the prejudicial effect of a construction such as that contended for. While the court should be and is reluctant to adopt a construction of chapter 156 that might render the same unconstitutional, we felt it nevertheless incumbent upon us to adopt a reasonable construction of the act, even though in doing so we should be forced to the conclusion that it is unconstitutional. In short, even in the absence of a representation by a numerous class of persons who would be adversely affected by the construction of the law with which counsel for both parties manifest satisfaction, we cannot adopt a construction that does manifest violence to a clearly expressed intention of t lie legislature, even for the high purpose of saving the constitutionality
The language of § 3 of the Motor Vehicle License Act (chapter 156) is free from ambiguity and unmistakable in its literal meaning. The legislature has said: “The registration fees imposed by this act upon all motor vehicles shall be in lieu of all taxes, general or local, to which motor vehicles may be subject, except, that dealers’ license fees shall not be in lieu of other taxes.” In addition to this unambiguous language, the radical increase in the license fee over that which was previously charged, and the comprehensive plan according to which the large amount of anticipated revenue is required to be expended for governmental purposes, is persuasive evidence of an intention on the part of the legislature to make the so-called license fee take the place of both the pre-existing license fee and the personal property tax upon the vehicles. Such evidences of legislative intent are so clear as not to be capable of being overcome by the consideration of a slight difference in the time of passage of the two apparently conflicting provisions, as disclosed by the legislative journals. It is more reasonable to regard the two chapters (156 and 59) as relating to independent subjects and as involving conflict only to a limited extent. One relates to the classification of the general property of the state for tax purposes, while the other deals particularly with a class of property which, for tax purposes, is intended to be segregated from the general mass and treated according to an entirely different plan. Under well-settled rules of statutory construction, the general statute must yield to that which deals specifically with a part of the subject-matter embraced in both.
Had chapter 156 not been enacted, the intention of the legislature to subject motor vehicles to ad valorem taxation at the scheduled rate of valuation would have been clear and unmistakable, but it would be going beyond the bounds of legitimate inference to say that, by the adoption of both chapter 59 and chapter 156, it was the deliberate design of the legislature to negative an intention which clearly lies at the very basis of the License Act. It is only the fact that the License Act was first in order of passage by the legislature that furnishes occasion for the suggestion that the provision making the license tax a
The conclusion above expressed .seems to be fortified by the very language of § 1 of chapter 59. This section purports to make the classification schedule adopted applicable only to “real and personal property subject to a general property tax, and not subject to any gross earnings or any other lieu tax.” Clearly, it was not intended that personal property which was not subject to a general property tax should be embraced within the classification scheme, nor was it intended that any property should any longer be embraced therein after it had become subject to taxation in some other form, in lieu of a property tax. That is precisely what is provided for in the Motor Vehicle License Act, and hence a motor vehicle comes directly within one of the exceptions to the classification schedule. The fact that motor vehicles are named, however, in class 2 of the schedule is only evidence to our minds that, owing to the imperfections of legislative procedure and to the impossibility of determining in advance the fate of related legislation, it was thought well to make a class broad enough to provide a proper place in the general schedules in case the legislation dealing specifically with one particular kind of property should not be passed.
We are strongly of the conviction that chapter 156 was intended to authorize a license fee in lieu of all other taxes, and that the act will have to stand or fall as so interpreted. This construction accords with the express language of the act, and to attempt to attach a contrary meaning would be nothing short of trifling with a well-understood legislative intention. We are thus compelled to consider the constitutional objections urged against the validity of the Motor Vehicle Tax Law, treating the same as substituting a graduated license fee in lieu of the combined pre-existing license fee and ad valorem tax.
We are, then, confronted with the question of the power of the legislature to effect such a change in the tax laws under the limitations of the Constitution. In approaching the consideration of the constitu
The provisions of the Constitution with which we are particularly concerned in this connection are found in article 11, §§ 174, 176, and 179, as amended by chapter 103 of the Session Laws of 1913, the
By the amendment which was made in 1914, the basic mandate, of universal uniform ad valorem assessment was changed. The amendment provided merely that “taxes shall be uniform upon the same class of property, including franchises within the territorial limits of the authority levying the tax.” Sess. Laws 1913, chap. 103. The power of the legislature to exempt property from taxation, however, was expressed in practically the same language as that contained in the original § 176, and, so far as applicable to personal property, reads as follows: “And the legislative assembly shall by a general law exempt from taxation . . . personal property to any amount not exceeding in value $200 for each individual liable to taxation.” Sess. Laws 1913, chap. 103. Section 179 was amended (chapter 103, Sess. Laws 1913, § 2) by striking therefrom the provisions requiring an apportionment of the assessed valuation of public utility properties to local municipalities.
Being reminded at this point of the effect of the Motor Vehicle License Law to remove from motor vehicles the burden of general and local taxation, we are required to answer the inquiry whether it is competent for the legislature to strike from the tax rolls of local municipalities property not legally exempt, and thus deprive them of
Without holding or meaning to intimate that the only source of revenue that would have been open to the state and its governmental subdivisions, under the provisions of article 11 of the Constitution as it originally stood, was a tax derived from property uniformly assessed (State v. Kleetzen,
Viewed in this light, which we believe reflects its true meaning, the requirement of localization expressed in § 179 was only the expression of a rule that it was necessary to follow if the goal of general uniform
Apart from the incidental effect of the original § 179, construed in conjunction with § 176, we are of the opinion that there was a most important reason for the adoption of the section. It gave to the state board of equalization the sole power to assess the enumerated public utility properties. This power was doubtless conferred upon a central board in order to obviate conflicts between local taxing authorities, each taxing portions of the same property. It will be noted that the properties affected are those which generally extend into and through a large number of taxing districts. In the light of this fact, it was thought that the best means of securing uniform valuation, and of avoiding complications incident to the attempted exercise of authority by numerous local units, was through the medium of a central assessment. We do not doubt that this affords the strongest, if not the sole, reason, for the adoption of § 179. So important is this consideration that the supreme court of California, in construing a similar constitutional provision, was divided upon the question as to whether or not it should be extended by implication to cover assessments of street railways and interurban lines operating in more than one county. San Francisco & S. M. Electric R. Co. v. Scott,
In view of the fact that the constitutional provisions designed to perpetuate the plan of property taxation above discussed have been superseded by amendment, it may not be out of place to refer briefly to the views entertained by economists relative to the efficiency of the scheme as a just method of taxation. While we are not primarily concerned with the economics of the question and express no opinion thereon, reference to the current views of such authorities may -conduce to a better understanding of the amendment. It is only reasonable to assume that the amendment was made with a view to correcting inherent defects. A foremost authority on the subject of taxation in the American states condemns the general property tax both from the theoretical and practical standpoints, and, in pointing out wherein it has signally failed as administered, says: “The standard of ability has been shifted from property to product; the test now is not the extent, hut the productivity, of wealth. . . .
“Practically, the general property tax as actually administered is beyond all doubt one of the worst taxes known in the civilized world.
Counsel upon the argument referred to the general property tax as being of comparatively recent origin, and to the amendment as harking back to a period when legislatures were more free than now in the matter of tax legislation. In this, counsel was only partially correct. The general property tax is medieval, not modern. When the organization of society was simple, the general property tax so strongly reflected the semblance of equality that it was quite generally adopted. But it has been so long discarded in continental Europe and in the eastern states of America that it usually receives but passing mention by those who devote attention to public finance. When it is mentioned it is only to be condemned for its utter failure to achieve the desired ends of justice and equality.
To what extent has the original scheme, which in practice has proved so disappointing, been departed from by the adoption of the amendment above referred to, It will be noted first that § 176 no longer commands the legislature to provide for the taxing of all property by uniform rule, according to its true value. On the contrary, the section purports to be only a limitation designed to preclude arbitrary classification, and to require uniformity only within' a class and within the territorial limits of a taxing authority. Section 179, as now amended, while retaining the pre-existing requirement of local assessment, except as to enumerated public utilities, entirely does away with the necessity for a distribution of the assessed value of utility properties to the local taxing units. These two sections of the amendment of 1914 arc significant of a decided change in the pro-
But does the requirement that all taxable property except that of the enumerated utilities shall be assessed in the county, city, township, etc., in which it is situated, any longer require that all taxable property not excepted be placed upon the tax rolls of the designated local units ? If so, the legislature has no authority to effect its withdrawal.
As an aid in determining the meaning of the amended § 179, it should be borne in mind that § 202 of the Constitution requires the separate submission of amendments so that they may be separately voted upon, and that chapter 103 of the Session Laws of 1913, which .amends both §§ 176 and 179, was adopted as one amendment. We .should assume, therefore, that it was desired to effect but one basic •change in the Constitution, and that whatever alterations in other sections were deemed essential to malee that change effective were made for that purpose only. The basic change sought is doubtless found in § 176, wherein the rule of general uniformity is changed to that of a permissive classification accompanied by a requirement of territorial uniformity. The change made in § 179 by removing the direction to apportion the assessed valuation of the utilities to the local units but brings it into harmony with § 176. Where a single purpose seems to be dominant in an amendment, we should be reluctant to give to •other sections a construction that would tend to defeat it; particularly where the section which is not wholly consistent in its language was but a little more than an appendage to that which was most radically •changed.
ITndcr its authority to classify, the legislature. may. determine that there are subjects of tax within a given locality that may reasonably be made to contribute to the maintenance of one municipality rather than to another, both having jurisdiction over the same territory. Thus, it may be thought more appropriate for a county or for the state, either of which may be charged with the duty of keeping up the public highways, to exact of an automobile stage, driver the taxes derived from the instrumentalities-that he uses in connection with his business, than it would be to permit the city, where he might sleep half the time and over whose streets he might run but a short distance, to derive a larger benefit from his taxes upon the automobiles he uses than the county or state.
Or the legislature might deem it proper to authorize the creation of a park commission or board, and vest it with authority to levy a tax for the acquisition and improvement of park sites. If it should be of
The true aim of the original §§ 176 and 179 was to compel an equitable distribution of the tax burden. This they sought to accomplish by requiring a uniform ad valorem assessment of all property and the application of the local and general tax rates thereto. The aim of the amendment is doubtless the same, but we must construe it as made in the light of the universal experience above referred to. It contemplated that the legislature might take cognizance of the economic setting of the various classes of property subject to its taxing authority, and consider this as a factor in legislating regarding the peculiar functions of the different municipalities and the duty of supplying the needed revenues to support them. If this be not the scope of the amendment, why was the requirement of uniformity limited to “the territorial limits of the authority levying the tax,” and why was the constitutional form of expression changed from language strongly mandatory to permissive freedom within limited bounds? If, under § 150 of
In its essence, the objection interposed in this case on behalf of the city of Fargo amounts to a complaint that its taxing power is impaired, but, by § 180 of the Constitution, the legislature is given plenary control over municipalities in the matter of the limitations upon their taxing power. In fact, their power to tax is derived from legislative grant. State ex rel. Oliver Iron Min. Co. v. Ely,
Enough has' been said to indicate that constitutional localization of property for purposes of taxation is inherently inconsistent with the legislative power to classify. But, does the language of § 179 require that we should give effect to a meaning so far inconsistent with § 176 ? We think not. When the entire amendment is read together we think it reasonably clear that the effect of § 179 is simply to provide that property which is required to be taxed for local purposes be given a situs within the district in which it is to be taxed, and that certain properties shall be assessed by the state board of equalization. The word “taxable” qualifies “property” in the amended section, whereas there was no qualifying word in the original section. This would seem
Being of the opinion that the complaint of the city of Fargo is unwarranted in so far as it is predicated upon a right to retain the property in question upon its tax rolls, it remains to be determined Avhetlier the act so operates as to exempt personal property in violation of § 176 of the Constitution, or to circumvent § 174, limiting the amount of state taxes.
It is incompetent for the legislature to exempt personal property from taxation except to the extent of $200 worth for each individual liable to taxation. This act imposes a charge denominated a license or registration fee. Does it necessarily violate the provision above referred to ? It is clear, as hereinbefore pointed out, that the legislature intended that the property in question should bear no other tax burden than that provided in this law. The amount required to be paid entitles the owner to enjoy the right to use the highways and to hold his property free from other tax obligations. Doubtless, it would be competent for the legislature, in imposing a license tax, to take into consideration the uses commonly made of the property affected, together with the additional burdens Avhich such uses place primarily upon the state. The duty of keeping the public roads in condition is a governmental one which, under our Constitution, the state is now authorized to discharge directly. Const. § 185, Sess. Laws 1915, p. 403. Whore a fee or tax may fairly be said to be no larger than is reasonably necessary to compensate for the extra burden incident to the common use of the highAvay by a given class of vehicles, it cannot be said to be so arbitrary as to be unwarranted. There being no provision in the Constitution directly restricting the power of the legislature to impose a license fee or tax, the charge imposed, having been measured accord
But unless it is included in the fee, there cannot be said to be any tax upon the property, and the act cannot stand because of the express provision of § 176, limiting the power of the legislature to exempt property from taxation. Can it be said that the legislature, by determining upon a policy of substituting a license fee for a tax, has, in effect, determined that the property is not exempt ? In the absence of constitutional requirements to the contrary, the power of the legislature to provide for an equitable adjustment of tax burden in such a way as to take into consideration other burdens placed upon a given class of property cannot be disputed. If the legislature deems it appropriate to single out a given class of property and to require that the owners of that property who, as a class, derive most benefit from the proper performance of a given governmental duty, must contribute most to the legitimate cost of its maintenance, and that they may be favored by a corresponding reduction of other burdens, it cannot be said that the property subject to the particular burden is exempt from taxation. The most that can be said is that it is singled out for special treatment and taxed according to a method that is thought to be more appropriate for measuring the relative burden than would be the case if it were taxed according to valuation. There is no particular magic in a name, or even in a legislative designation of a particular form of taxation. Though the legislature may call that which is distinctly a tax by some other name, it nevertheless remains a tax. Where the taxing power of the state is limited by the provisions of the Federal Constitution designed to secure the freedom of commerce between the states, the United States Supreme Court has not hesitated to distinguish between license fees and taxes, and the mere fact that a given charge is imposed by the state as a license charge is not conclusive of the legality of the charge. In the case of Harman v. Chicago,
The prohibition of the exemption of personal property could have been designed for no other purpose than to prevent favoritism and to compel a fairly equitable distribution of the tax burden. A law which secures this end meets every requirement of such a provision though the contribution exacted be not designated as a tax. The distinction between a fee and a tax is one that is not always observed with nicety in judicial decisions (see Seligman, Essay in Taxn. p. 281), but any payment exacted by the state or its municipal subdivisions as a contribution towards the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax. This is such a charge, and it may properly be regarded as a tax.
We have had the gravest doubt as to the propriety of so construing the law in question; but, viewed in the light of the ample powers of classification given to the legislature, of the known limitation upon the right to exempt personal property, of the declared intention to make the tax in question one in lieu of all other taxes, and of the evident attempt to make the new tax one that should approximately equal both the original tax and the license fee, we are impressed that the law in question imposes both a property tax levied according to a permissible standard and a reasonable license fee. The act consequently does not violate § 176 of the Constitution, concerning exemptions.
Here, too, greater, assurance is added' to our conclusion by the consideration that the legislature, in the exercise of its power to classify, could largely accomplish indirectly that which is accomplished directly by the act in question. If the legislature should see fit to adopt an act licensing automobiles and make the charge one in addition to a property tax upon vehicles, such as is done in a number of states, it would have the right to base the property tax upon a percentage of valuation that would be so low comparatively as to amount practically to an exemption, and its action in so doing would be justified principally by the fact that a larger burden had been placed upon the property by way of a license charge for its use. Again, we are prone to reiterate the thought that a construction of the Constitution which
Does the act violate § 174 of the Constitution? In considering this question it must be borne in mind that § 174 was originally adopted as a part of the plan that contemplated the raising of the bulk of the revenues required, both for state and local purposes, from the general property tax levied upon an uniform ad valorem assessment. The limitation was one that could readily be applied to any assessment of the general property of the state that might be made for tax purposes, but it cannot so readily be applied, if the legislature should seek to exercise its powers of classification conferred by the amendment to § 176. Under this plan much of the property might be assessed at a small percentage of its value, and the contemplated basis would be entirely changed. Nor could the section ever have been fully applied under the Constitution as it was originally framed, had the state'elected to exercise the power to levy a gross earnings tax upon the railroads in accordance with the exjmess authorization contained in § 176. It was there provided that “the legislative assembly may, by law, provide for the payment of a percentum of gross earnings of railroad companies to be paid in lie\i of all state, county, township and school taxes on property exclusively used in and about the prosecution of the business of such companies as common carriers, . . . and whenever and so long as such law providing for the payment of a percentum on earnings shall be in force, that part of § 179 of this article relating to assessment of railroad property shall cease to be in force.” It is clear that it was originally contemplated that, in the event the legislature should see fit to adopt a gross earnings tax applicable to railroads, this class of property, which from the beginning has made up a substantial part of the total assessed valuation of the property of the state, should not be assessed at all, and it is equally clear that had this power been exercised it would not have been incumbent upon the state to have distributed the gross earnings taxes to the local governmental units. There would then have been no proper assessed valuation basis upon which to apply the 4-mill limitation of state taxes. So, from the beginning § 174 could not have been regarded as establishing an abso
When § 176 was so amended as to authorize the classification of property within reasonable limits and to require uniformity only within the territorial limits of the authority levying the tax, it is manifest from what has previously been said in this opinion that the legislature became free to adopt any reasonable measure for determining an equitable basis for contributions to the revenues, and it is equally clear that it was no longer contemplated that there should be an annual assessment of property at its true value. Consequently, the very basis upon which the limitation contained in § 174 was originally intended to apply was no longer fixed by a mandatory requirement of uniform ad valorem assessment. Therefore, whenever the legislature sees fit to adopt some other reasonable basis upon which to determine the amount of tax that may be exacted from an individual than the value of the property owned by him, it does so in pursuance of an authority which is expressly recognized by the Constitution as now amended, and it cannot be said to be exceeding the revenue limitations prescribed in § 174. Section 174 means now very much the same as it has meant from the beginning, viz., that the legislature shall be precluded from raising revenues based upon an ad valorem assessment of property which will exceed in any one year 4 mills on the dollar of the assessed valuation of the taxable property in the state. To construe it otherwise would be not only to ascribe a meaning that would have precluded the proper exercise of the legislative power to tax railroad companies according to gross earnings, under § 176, as it originally stood, but would also prevent the proper use of the authority which it clearly has under § 176 as amended to provide for a separation of sources of state and local revenues, and to exact the same according to any fair method of classification that in its judgment is designed to meet the ends of justice. We are of the opinion that the act in question does not violate § 174 of the Constitution.
Much of the argument of counsel for the petitioner seems based upon the hypothesis that the Constitution precludes taxation of any other
Hnder the law in question, the amount of the fee or tax is dependent upon the horse power of the motor, which is determined according to a rating established by the National Association of Licensed Automobile Manufacturers. It may be true, as contended, that the rating is defective in that it does not take into consideration the length of the stroke, of the piston and the valve equipment, but this is a matter for the legislature to determine; and it is not for the courts to review the reasonableness of the method adopted, in the absence of a showing that it is wholly arbitrary.
The owner of the car is required to make an application for the registration of his motor vehicle, which must contain a description of the car to enable the secretary of state to determine the registration and license foe, according to the prescribed rating. There is not involved in this procedure any act of a quasi judicial nature, such as the placing of a valuation upon property. The tax is determined wholly by the fixed rating, which is dependent upon tho size and number of cylinders. The only other factor that enters into the determination of the fee is the length of time the vehicle has been in use as a registered car. Inasmuch as these facts are supplied by the owner, there is no-
The act is further assailed as involving an unconstitutional delegation of legislative power upon an administrative or executive officer. This objection appears to be a valid one. In § 4 of the act it is provided: “The secretary of state is hereby authorized to employ such agent or agents as may be necessary to enforce the provisions of this act,” and in § 5, the state treasurer, in apportioning the moneys received to the credit of the counties and to the state highway fund, is required to first deduct from the moneys received “the cost of tags, cleric hire, printing, postage, express and other expenses as estimated by the secretary of state.” These provisions clearly involve a delegation of legislative power to the secretary of state. There is no limitation upon the number of persons he may employ nor upon the salaries he may pay. Neither is there any limitation placed upon the expendí ture that he may authorize for tags, printing, etc. Nor even any limitation upon the purposes for which “expenses” may be incurred; the act says “other expenses.” Nothing need be said upon this question in addition to what has been said by this court in previous decisions which are clearly applicable to the case at hand. State ex rel. Rusk v. Budge,
This identical question was before the supreme court of Illinois in the case of People v. Sargent,
For the reasons assigned in the foregoing opinion, the writ is denied.
Dissenting Opinion
(dissenting). This case presents no question arising under the Constitution or laws of the United States or of any other state. Hence, there is no good reason for considering and quoting from all or any of the decisions on the dissimilar laws of other states. This case was brought to compel the assessors of the city of Fargo to list and assess for taxation all automobiles and motor vehicles owned in the city. It challenges the validity of chapter 56, Laws of 1917. This statute imposes on all motor vehicles a license fee or tax of not less than $6, and for each horse power in excess of 20, there is an additional tax of 50 cents. Only half the tax is laid on automobiles registered three years prior to the passage of the act. The same is in lieu of all other taxes, general or local, except that the fee paid by dealers is not in lieu of other taxes.
All taxes are paid to the secretary of state, and he is charged with the supervision and collection of all the taxes. He pays the same to the state treasurer and from the moneys received in each month, the state treasurer deducts the expense of the business, and the balance he divides into three parts. One part, or one third of the balance, he distributes to the several county treasurers, and he credits the remainder to the state highway fund. That fund is all expended and paid out under the direction of the State Highway Commission on vouchers approved by the secretary of the commission, and the money paid to each county is expended for the repairs of highways not within the limits of any city or village. Such is the theory of the law. There is no limit to the expense that may be incurred and paid by the Highway Commission and by the secretary of state. To collect the tax and to enforce the provisions of the act, the secretary of state is authorized to employ such agents and to pay such compensation as he may think proper. On general expense accounts, there is no. limit to his discretion. Were it not that the secretary is a strictly honest man, he might easily expend among his friends all the receipts of the business and leave not a dollar for the Highway Commission to éxpend in the same
In 1917 the tax receipts were $210,000, the expense of collecting was $33,700. In 1918 during the first three months, the receipts were $250,000.
To May 15, 1918, the Highway Commission expends — for engineering and drawing, $50,480.87; road work, $335.21.
1. Every law imposing a tax must state the object of the tax to which only it shall be applied. If the object of a tax was the improvement of a highway, the statute should have directed and limited the manner of making the improvement and of collecting and expending the tax. It should not have been all left to the absolute discretion of the secretary and the Highway Commission. There must be some reasonable limitation on the expense of collecting and on the manner of expending a tax, or there can be no assurance of its application to any particular object. State ex rel. Rusk v. Budge Capitol Commission Case,
2. The legislature must provide for a tax to defray the expense of the state for each year not to exceed 4 mills on the dollar of the assessed valuation of taxable property, and a sum sufficient to pay interest on the state debt. And — with a few exceptions which do not include motor vehicles — all property must be assessed in the county, city, township, village, or district in which it is situated, and the assessment must be made in the manner prescribed by law. § 179.
Certain it is that under the plain words of the Constitution no tax may be levied on motor vehicles without an assessment of the same in the manner provided by law for the assessment of other personal property. Without an assessment of real and personal property according to its value in money, there can be no basis for the levying of a tax on the assessed valuation and for limiting the total to 4 mills on the dollar.
With a few exceptions, including a poll tax, not to exceed $1.50 a year, all taxes must be levied on property according to an assessed valuation to be made and equalized in manner provided by law. And by the guaranties of due process of law the owner of property must have an opportunity to he heard in regard to the assessment of the samo
The exemption must be limited to a certain sum or valuation, and not to any particular kind or class of property. It must have a uniform application. Obviously, the statute in question is in direct conflict with the above provisions of the state Constitution, and hence it is void.
Rehearing
On Rehearing.
A rehearing was ordered in this case upon two propositions: First, as to whether or not §§ 176 and 179 of the Constitution had been amended in 1914 by the favorable vote of the electors upon the proposition submitted; second, considering the Constitution to have been legally amended, what is the proper meaning of § 174 (the provision limiting the state taxes to 4 mills on the assessed valuation of the taxable property), as applicable to the lav/ in question?
In the concurrent resolution submitting the amendment the legislature referred to the proposed change or changes in the Constitution as “amendments to §§ 176 and 179,” and required that “such amendments shall be submitted to the qualified voters of the state at the next general election, for approval or rejection, in accordance with the provision of the Constitution of the state of North Dakota.” The amendatory matter has been referred to or set forth at length in the main opinion herein, and need not be reincorporated here. Section 202 of the Constitution outlines the procedure that must be followed in amending the Constitution. The last sentence of the section is, “If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.” It is argued that the amendments to §§ 176 and 179 are separate amendments, and that, not having been so submitted as to enable the electors to vote for or
Constitutional provisions similar to our own (§ 202) prescribing the requisite formalities to effect an amendment are quite common. In more than half the states there is a requirement of some character which is designed to secure such a submission of constitutional amendments as will enable the electors to vote for or against a single definite proposition. The concurrence of so many constitutional conventions upon the single question of the method of submitting amendments is, in itself, a strong indication of the importance of the question. See Dodd, Revision & Amendment of State Const. p. 179; also, 12 C. J. 690. If the amendment were not properly submitted, it would unquestionably be the duty of the court to declare it not a part of the Constitution. The provisions óf our Constitution are mandatory and prohibitory (§ 21), and, as such, the Constitution construes itself in relation to such a matter as that under discussion. State ex rel. Woods v. Tooker,
As to what constitutes a plurality of amendments within a provision such as our § 202, however, the attitude of the courts generally has been to adopt what is, in our judgment, properly termed a liberal and common-sense view.
The views of the supreme court of Wisconsin, as expressed in the case of State ex rel. Hudd v. Timme,
The following expression from the supreme court of Iowa is to the same effect: “If the amendment has but one object and purpose and all else included therein is incidental thereto, and reasonably necessary to effect the object and purpose contemplated, it is not inimical to the charge of containing more than one amendment.” Lobaugh v. Cook,
The supreme court of Montana has expressed the rule in a concise manner as follows: “If in the light of common sense, the propositions
This and similar questions have been before the courts of last resort in a number of the states, and, while the decisions are not entirely harmonious, the conflict principally turns upon the application to the particular case of a principle which is quite generally adhered to. See People ex rel. Elder v. Sours,
To refer in detail to the variety of circumstances in which the question under discussion has arisen in the foregoing cases would unduly lengthen this opinion. We shall consequently content ourselves with a mere statement of the principle which finds practically unanimous support in the many authorities cited.
Such a constitutional provision is designed to prevent the submission to the voters, as one amendment, of distinct propositions that are so far disconnected and independent of each other as to have no direct relation to a general subject. The vice it is designed to prevent is analogous to the log rolling and joker practices which are so familiar
A somewhat extreme application of the foregoing principle is found in the case of People ex rel. Elder v. Sours, supra, in which the supreme court of Colorado held that an amendment -was single where it provided for the consolidation of the city of Denver and the county of Arapahoe and for the framing of a charter by the new municipal corporation; also, for the framing of home rule charters by all cities of the first and second classes within the state. See Dodd, Revision & Amendment of State Const. p. 180.
The amendatory matter in the instant case relates to the uniformity of taxation, permits the classification of property, and alters the section regulating the assessment and taxation of certain public utility properties. Within the principle', stated above and under the authorities cited, there can be no question that a change may be effected by one amendment which would materially alter more than one section of the Constitution. Nor can there be any doubt that this can be accomplished either by implication or by express language. It is also clear that § 202 of the Constitution is not violated where an amendment which, is in reality single is expressed in several sections which
In the original opinion a brief survey was made of various .sections of the Constitution embracing limitations upon the taxing power, and it was seen that, at the basis of all of them, lay the mandatory requirement of § 176, that property should be taxed uniformly and according to value. It was also pointed out that for these limitations there was an apparent desire to substitute a provision that would enable the legislature to classify property with reference to its use, its value, its utility, and, in general, its setting in the economic organization of society with reference to the functions of government as exercised by the state and its minor subdivisions. These purposes differ so radically from the purposes evidenced by the original section that the amendment would naturally carry with it, if accomplished, and if legislation were adopted in pursuance of the powers intended to be given, changes in the scheme of public finance that were not in the contemplation of the framers of the original Constitution. These changes were intended to be effective to the extent that legislation within the limitations of § 176, as altered, departs from the requirement of full value ad valorem assessment as originally contemplated. For instance, the sections of article 12, which prescribe limitations upon the debts of various municipalities, take, as a basis, a percentage of the assessed valuation of the taxable property. Those limitations are doubtless still applicable, but the legislature may now give express sanction to assessments at a percentage of value, and executive and administrative officers may no longer be required to perpetuate a legal fiction of sworn full valuation in the face of contrary facts and a quarter-century’s universally known administrative practices. In fact, many of the provisions of the Constitution relating to revenue and taxation were framed to fit a system that had no actual existence. It was a mere phantom that had never taken up its abode in the world of things,
The limitations of the original Constitution only acquired vitality as applied to the actual administration of the tax laws; and it is a fact so well known generally as to be properly within our judicial notice that property assessments have never approached full value in this state, and that' probably more taxable personal property has been omitted from the tax rolls than has been assessed. It may be that under the amendment in question, laws might be passed under which the aggregate assessed valuation would be radically increased. If so, the tax-levying and debt-limiting provisions of the Constitution might operate quite differently from the way they have in the past, or even from the way it was originally contemplated they would operate. This is but incidental to the change.
It is argued that a law which measures a tax by some characteristic of property, other than its value, destroys the basis of such limitations as those referred to. If this be so, the argument proves nothing, provided the original limitations are still applicable. If still applicable, as we believe they are, they will necessarily preclude the legislature from taxing a great amount of property according to such a method as is employed in the instant case; as, under our construction of the law, it operates to reduce, rather than increase, the power to incur debts. While thus preventing extravagance, the legitimate needs of the local municipalities, which can only be supplied by a proper exercise of their borrowing power, will necessitate the continuance of the practice of taxing the bulk of the property on an ad valorem basis.
As stated in the original opinion, there is an inherent inconsistency between a constitutional provision that requires the taxing according to a uniform valuation and rate of all property lying within a given taxing district and a constitutional provision that requires uniformity only within a class and within the territorial limits of the authority levying the tax. The inconsistency lies in the entire absence of any
If we have correctly sensed the meaning of § 176, it remains to be seen whether its scope is so broad as to embrace subjects so far unrela
As pointed out in the former opinion, the change that was made in § 179, according to which it was no longer required that the assessed valuation of the public utilities properties be distributed to the local taxing units, was only such change as was necessitated by the evident desire to give effect to the full scope of § 176 and make possible the separation of sources of revenue for the support of the state - and its subdivisions.
It should be noted, too, that § 179 as amended, no longer requires the state board of equalization to assess the public utilities properties “at their actual value,” as formerly. This change was also doubtless dictated by the desire to render § 179 harmonious with § 176, so that
It is argued that there might be many persons who would favor giving the legislature power to classify property for tax purposes, and require that the taxes should be uniform within the territorial limits of the authority levying the tax, who would be unwilling to relinquish, at the will of the legislature, the assessed valuation of the public utility properties as they are apportioned to the various taxing districts by force of § 179. Perhaps this might be true, but amendments to the Constitution are not to be analyzed until each idea that enters into a composite thought or purpose is made to stand out dissevered from every other idea with which it is related. There may be a distasteful clause or a possibly disagreeable minor result attributable directly to an amendment, but yet the amendment must not fail because it might have been possible to couch it in a little different language, or to have defined its scope in such terms as to have eliminated the disagreeable consequence. This is not the.test of the singleness of an amendment. The controlling consideration is the singleness of the purpose and the relationship to the general subject.
We are entirely satisfied that the amendment in question was legally adopted and is a part of the Constitution.
We think it proper to note in this connection, though the incident has no force as a legal precedent, that the second article of the amendments to the Constitution, which was' adopted in 1898, amended two sections (§§ 121 and 127) relating to the elective franchise. Section 121 was amended by striking from it the provision including in the electorate of the state persons of foreign birth, who had declared their
As to the meaning of § 174 since the amendment of the Constitution and as applicable to the law in question, nothing need be said in addition to what was said in the original opinion. The rehearing has served to give added assurance of the correctness of the result arrived .at, and the order denying the writ is confirmed. .
Dissenting Opinion
(dissenting). The purpose of this suit is to secure the assessment and taxation of motor vehicles in the same manner as other property. In 1917 the legislature passed an act to create a highway commission (chap. 131), and an act imposing on motor vchi
For drawings .........................'........$50,480.00
For road work ..............................$ 335.21
For the years 1917 and ’18 the motor tax is $722,753.
Those facts are subject to many grave and serious objections. Indeed, they are in direct conflict with several sections of the Constitution and the fundamental principles of law governing taxation. Under the Constitution no act may embrace more than one subject, which must be expressed in its title. § 61. And yet the title to chapter 131 does manifestly embrace several subjects: The title is an act (1) to create a highway commission; (2) to fix the salary of the state engineers; (3) to provide for disposing of fines and penalties; (4) to assent to an act of Congress; (5) to provide state aid in the construction and repairs of roads and bridges; (6) to amend and repel half a dozen sections of the compiled laws. Such a title speaks for itself, and shows beyond question that the act is void and hence in law there is no highway commission.
Now for each year the state tax levy must not exceed 4 mills on the dollar of the assessed valuation of all taxable property, and a sum sufficient to pay interest on the state debt. § 174. But how can that limitation have any force or effect if taxes may be levied on motor vehicles or on other property without any assessment; and if one kind or class of property may be subjected to a tax levy without an assessment, what is there to prevent a similar levy on all kinds or classes
Furthermore, no tax may be levied except in pursuance of law, and every law imposing a tax must state distinctly the object of the same, to which only it shall be applied. § 175. Yet the law imposing a motor vehicle tax to an amount sufficient to pay nearly all the necessary expenses of the state does not state how it shall be applied. Its application is left mainly to the discretion of the secretary of state and the highway commission. Under the statute the bulk of the money should go to a commission that is left entirely free to expend it when and where and as they may please. The only limitation is that 90 per cent shall be spent in the several counties in proportion to the amount collected therein. “Ten per cent of the fund shall be spent according to the discretion of the commission,” and. “none of the money shall be expended within the limits of any incorporated city or village.” The money is to be paid on vouchers approved by the secretary of the Commission; though the Constitution provides no money shall be paid out of the state treasury except upon appropriations made by law, and on a warrant drawn by the proper officer,— the state auditor. § 186.
Of course, the statute does contemplate that the bulk of the tax shall be used for the construction or improvement of country highways, but the people have not by a two-thirds vote authorized the use of the money in that way, and under the Coiistitution the state may not engage in any work of public improvement unless authorized by a two-thirds vote of the people. § 185.
Moreover, all individual property must.be taxed by uniform rule, according to its value in money, and there may be no exemption of personal property in excess of $200 for each individual, § 176. And all property must be assessed in the county, city, town, village, or district in which it is situated, in manner prescribed by law, except railroads and other public utilities, which are assessed by the state board of equalization. § 179.
In the majority opinion it is said of those limitations of the Constitution: “If still applicable, as we believe they are, they will necessarily preclude the legislature from taxing a great amount of property according to such a method as is employed in the instant case.” This is an admission that the tax is illegal and void, with a hope that the legislature may not do it again to any great extent. Bor if this method
Finally, if the state may levy a specific tax on motor vehicles or on one class of property, “to be in lieu of all other taxes, general or special,” then it may in like manner levy a similar tax on any other class of property, and in that way deny to every municipality the power to levy any tax. It may virtually destroy every municipality by depriving it of any resources, collecting all.its taxes and giving the same to a Commission to be used according to its discretion, but not •in any city or village. As the argument shows, the specific motor vehicle tax, which the statute imposes without any assessment, is in direct conflict with all the fundamental principles of taxation, as guaranteed by the Constitution. Hence, the tax and the statute are illegal and void. That is all as clear and as certain as it is that twice two is four.
Concurrence Opinion
I concur in confirming the order denying the writ.