149 N.W. 573 | N.D. | 1914
Lead Opinion
Application on due notice is made to this court by a resident citizen and taxpayer for a writ commanding the respondents, as members of the state board of equalization, to correct and readjust its levy of state taxes so as to include therein 1-J mills for the educational institutions of the state, pursuant to the special levy for such purposes made by the legislative assembly in chapter 148, Laws 1913. Such board levied but 1 mill to meet all the special levies made by the legislature, leaving but a fraction of a mill for the educational institutions as apportioned by such board. The board attempts to justify its action in so doing upon the grounds:
1st. That the acts attempting to make such special levies are unconstitutional, and,—
2d. That such reduction was necessary in order to bring the total levy for state purposes within the constitutional limit of 4 mills as provided by § 174 of the state Constitution, which reads:
“The legislative assembly shall provide for raising revenue sufficient to defray the expenses of the state for each year, not to exceed in any one year four (4) mills on the dollar of the assessed valuation of all taxable property in the state, to be ascertained by the last assessment made for state and county purposes, and also a sufficient sum to pay the interest on the state debt.”
We do not pass upon the constitutionality of such special levy statutes, for -the reason that such point is not pressed by respondents’ counsel, and at the oral argument was practically abandoned by them. Furthermore, all the beneficiaries under these statutes are not before the court, and it would be unfair to them to adjudicate such question in their absence. Moreover, some of these special levy statutes have been in operation for many years, and their validity has never been questioned. It is also, at least, doubtful as to the right of respondents, as members of
Following the well-settled rule that courts will not inquire into the validity of a statute except when it is imperative so to do, we refrain from doing so in this case, but in passing we cannot refrain from observing that respondents’ contention on this point is, in any event, apparently inconsistent with their action in levying a fraction of a mill for such purposes.
The petitioner, on the other hand, is, we think, clearly in error in his contention that the constitutional limit of 4 mills as fixed in § 174, supra, does not apply to levies for educational purposes. If such contention be sound, there is no limit to the rate of taxation except with reference to raising revenue sufficient to defray the expenses of the three co-ordinate branches of the state government, the executive, legislative, and judicial. In employing the language, “the • legislative assembly shall provide for raising revenue sufficient to defray the expenses of the state for each year, not to exceed in any one year four (4) mills on the dollar,” etc., the framers of the Constitution clearly intended to thus limit the raising of revenue for all purposes whatsoever, except that mentioned in the last clause of the section; and this is the holding of the Colorado court under a similar constitutional provision. People ex rel. Thomas v. Scott, 9 Colo. 422, 12 Pac. 608; Re Appropriations, 13 Colo. 316, 22 Pac. 464; People ex rel. State University v. State Board, 20 Colo. 220, 37 Pac. 964. It would, indeed, be strange if it was intended to limit the raising of revenue necessary for keeping the state government in operation, and yet leave a free hand as to all other purposes. Is the maintenance of the educational institutions more important than the maintenance of the state government itself ? Clearly not.
Is respondents’ second ground of justification, as above stated, tenable ? A correct answer to this question involves a consideration of certain questions of fact as well as law. It is conceded that the actual and necessary expenses of maintaining the three branches of the state government, viz., the executive, legislative, and judicial, must be taken care of in preference to all other expenses. In view of this concession, which is undoubtedly correct, and also in view of our holding as above stated, that 4 mills is the limit of taxation for all state purposes, it necessarily •follows that the levy for other purposes, even though directed to be
This brings us to a consideration of the question whether in making such levy the board erroneously included items of revenue not necessary to be raised for the purpose of meeting the appropriations made by the legislative assembly and the estimated general expenses of the state as made by the state auditor. The power of levying taxes is, of course, a legislative power, to be exercised within the limits of the constitutional provision, § 175 of the state Constitution, which provides: “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.”
By §§ 1531 and 1538, Bev. Codes 1905, being §§ 2141 and 2148, Comp. Laws 1913, the legislature designated the state board of equalization as the agency for levying state taxes. The latter section, among other things, provides: “In levying said tax the state board of equalization shall be limited by the amount necessary to raise for the purpose of meeting the appropriations made by the legislative assembly and the estimated general expenses of the state, as made by the auditor, . . . provided, that if the amount is greater than the rate prescribed in the Constitution will raise, then the state auditor shall only certify the limited rate.”
It will thus be seen that the authority of the board is limited by law, in making such levy, to an amount necessary to meet past appropriations made by the legislature and the estimated general expenses of the state. Such language is, we think, too clear for debate, and that thereunder the board has no power to include in its levy items deemed necessary to meet anticipated future appropriations. It is equally clear that the words “estimated general expenses” were intended to include merely the ordinary expenses pertaining to the maintenance of the three branches of the state government, and for which the legislature has provided standing appropriations. To otherwise hold would in effect be deciding that no limitation whatever, except the constitutional limitation of 4 mills, was intended to be imposed by the legislature. If 2
Defining the purpose for which a tax shall be levied is the exclusive function of the legislature, not the board of equalization or the state auditor; and this function cannot be delegated; and no tax can be levied unless the purpose therefor has been first specified by the legislature.
Tested by the above rules it is clear that the board exceeded its powers. The undisputed facts disclose that the board included one item of $171,800 to meet future contemplated appropriations of an extraordinary character, also other items of a similar nature. If such items are eliminated, the 4-mill limit will not interfere with the special levy of 1-& mills made by chapter 148, Laws 1913, for the maintenance of the state educational institutions.
We are amply supported in the above views by the supreme court of Colorado in the following cases decided under constitutional and statutory provisions very similar to those in this state: People ex rel. Thomas v. Scott, 9 Colo. 422, 12 Pac. 606; Re Appropriations, 13 Colo. 316, 22 Pac. 464; People ex rel. State University v. State Board, 20 Colo. 220, 37 Pac. 964; Nance v. Stuart, 12 Colo. App. 125, 54 Pac. 867, and cases cited; Parks v. Soldiers’ & S. Home, 22 Colo. 86, 43 Pac. 542; Denver v. Adams County, 33 Colo. 1, 77 Pac. 858; See also Chicago & N. W. R. Co. v. State, 128 Wis. 553, 108 N. W. at p. 576 of opinion.
The writ will issue as prayed for by the relator.
Rehearing
On Rehearing.
A rehearing was granted herein upon the application of the attorney general, who does not question the correctness of the above opinion upon the facts there before us, but asserts that such facts were, through mistake and inadvertence on the part of respondents’ counsel and the state auditor, accepted as correct, and that the true facts dis
Tbe perplexing question therefore arises as to tbe proper method to be pursued by tbe state board of equalization in dealing with this situation. Has tbe board tbe power to single out or select among tbe various appropriations in excess of those for the expenses of tbe three branches of tbe state government, which are preferred, such appropriations as in its judgment ought to be preferred and provided for in tbe levy, or must it, in making tbe forced reduction, either give priority to those first made in point of time, or make tbe necessary reduction in all sucb appropriations by a pro-rating method ?
We are clear tbat it cannot do tbe first. This is purely a legislative function, which has not been, nor can it be, delegated to tbe board. Tbe power of tbe legislature in tbe premises is plenary, but it has not spoken; hence one of tbe latter methods of dealing with tbe situation must be pursued by tbe board. Should preference be given to those appropriations which are prior in point of time? This is tbe bolding of tbe Colorado court in People ex rel. State University v. State Board, 20 Colo. 220, 37 Pac. 964, from which we quote: “While no authorities have been cited upon tbe question, and none have been found by tbe court, we think tbat, where excessive levies have been made, tbe true rule is to allow tbe levies precedence in tbe order in which they were passed, giving preference, when necessary, to levies for tbe purpose of meeting appropriations for tbe support of tbe executive, legislative, and judicial departments of tbe government as indicated in Re Appropriations, 13 Colo. 316, 22 Pac. 464.” Tbe ground for such bolding is not stated, but of necessity it must be predicated upon tbe theory, either tbat sucb was tbe legislative intent, or tbat, after exhausting tbe 4-mill limit, tbe legislative power to make appropriations was exhausted.
Neither of these grounds appeal to us as sound. We are wholly unable to see bow sucb intention of tbe legislature is in tbe least reflected
Again, in § 2031 this author, in speaking of the Colorado decision above cited, says: “This decision, it will be noticed, is in part at variance with the views heretofore expressed by the writer. There can be no doubt that the levy for the general expenses of government was-entitled to precedence, but inasmuch as none of these taxes had yet been actually levied so as to become burdens on or liabilities of the taxpayers, the writer believes that the pro rata rule should have been applied to-all the special taxes, regardless of the date of the enactment. Until the levies had been actually made, each successive act might well have-been regarded as repealing so much of the earlier acts as was inconsistent with it. After the levies had been made, and the taxpayer’s liability had actually accrued, of course the legislative power to lay further - taxes was exhausted.”
For the above reasons, briefly expressed, we reach the conclusion that it is the duty of the board in making the state levy to provide in full only for those appropriations covering the expenses of maintaining the three co-ordinate branches of the state government, the penal institutions, the hospital for the insane and the feeble minded, and that all other appropriations, both standing and special, should be reduced, on a pro rata basis, to such sum as will bring the total appropriations within the constitutional 4-mill limit.
We assume that the respondents will, without the issuance of any writ, revise and readjust the levy so as to conform with the views herein expressed.
Concurrence Opinion
concurring. My views of this case are that our decision should be along the following lines: (1) As the power to impose the tax is a legislative one, as to which all authorities seem agreed, the basis for this tax must be found in an expense authorized by the state legislature. The rate must be determined from this expense, and cannot exceed 4 mills. The expense to be applied to the existing valuation must be determined as provided by law (§ 2148, Comp. Laws 1913), and determined from two sources. These are: (1) Specific appropriations made. And in determining what are specific appropriations, that must be regarded as specific which can be made specific; under which rule an appropriation by a mill or portion thereof is a specific appropriation. The other source is found in the words of the statute (§ 2148), “and the estimated general expense of the state as made by the auditor.” This general expense of state is limited to the three arms of government,
With the basis for computation of the rate thus fixed, the question confronts us, as it did the board, of what to do when, as here, the total levy upon the above basis (inclusive as it is, of appropriations for specific amounts of the mill and one-eighth tax and of the necessary expense as thus computed hy the auditor), far exceeds the constitutional taxation limit of 4 mills for such purposes, and beyond which the board cannot go.
Before proceeding further, it is well to here state that we are reviewing no act of a judicial tribunal, and therefore are not reviewing a judicial discretion. Strictly speaking, this board of equalization has no such discretion. It and the state auditor act ministerially in carrying out the mandate of the legislature, which is the only body having discretion in taxation purposes as to state taxes, and whose discretion is manifested and must be found in the appropriations authorized, and not elsewhere. The court then has authority to review the ministerial acts of this board, even though such acts may involve a certain amount or kind of judgment as to the method of following the law, and we must determine whether the method prescribed by the legislature has been followed. The question then resolves to whether this board has in so acting pursued the course prescribed by law in meeting the exigencies, passed up to it by the legislature, of determining either what items, or what parts of the total levy in the aggregate exceeding 4 mills called for by the appropriations, shall be provided for by taxation.
In casting about to find some rule to apply to the situation in hand, it is first necessary to determine whether any portion of the total levy to be made is of funds that are by law recognized as preferred over others. If so, the legislature must be deemed to have known such fact, .and had it in mind in its appropriations of the total proceeds when they shall be raised. And here we find a recognized general division into preferred and nonpreferred items. Such amounts of this total levy as is necessary to pay what is strictly state expense, that is, disbursements necessary for maintaining and keeping in running the co-ordinate branches of our government, namely, legislative, executive, and judicial,
Thus the general fund is first- divided into the preferred and nonpreferred, according to the foregoing classification. The state board will determine the portion of the total 4 mills that, under the rule heretofore announced, should be necessary to care for the strictly state expense, and levy that amount without diminution or deduction whatever.
As to the balance over and above state expenses, in the absence of some legislative provision that a particular levy shall in all events have priority over others of its classification, I can see no reason why any specific appropriation, whether its levy be called for in specific amounts or by a mill apportionment, is to be preferred over any other. The fact that each is devoted to some object declared public and necessary by the legislature does not of itself say that one object so declared was of more importance than another to the legislative mind. TIence, there being no further apparent method of division or classification, one of two things must be done: (1) Either the appropriation given priority
Among the items to pay for which provision must be made is an item of $6,000 for printing constitutional amendments for the election just passed. My understanding of this item is that § 2296, Rev. Codes 1905 (§ 3190, Comp. Laws 1913), furnishes sufficient basis for its inclusion in the auditor’s estimate of strictly state expenses, and as such it is a preferred claim. We are not called upon to examine the various other appropriations made to determine the constitutionality of each of them, nor are we asked to do so.
What has here been said has been upon the conceded proof now before the court, that after all questionable items of appropriation are deducted there will not be remaining to exceed the proceeds of 1 mill upon the assessed valuation, so that when it is determined that the educational institutions must pro rate, it is also thereby decided that they can receive no more in the aggregate than 1 mill of the 4 mills levied. This in fact passes upon all questions necessarily involved. In my opinion the board should determine the amount of the preferred levy of state expense proper, and levy a rate sufficient to meet the same in full; that it should next compute the total valid appropriations made for the ensuing year, including the appropriation by the l-£ mill tax for the educational institutions, and then pro rate all said appropriations and rate equally, so that a levy for each and all the items of appropriations shall bear the same ratio to the total fund possible to be raised over state expenses and within the 4 mill limit.
Immediately after the filing of the above opinion