156 N.W. 925 | N.D. | 1916
Lead Opinion
In 1913 a petition signed by more than 25 per cent of the taxpayers of Ward county was presented to the board of county commissioners, asking that a tax be levied that year “and annually thereafter for the purpose of promoting diversified farming and agricultural developments through the employment of a person or persons to carry ■on scientific agricultural work within said Ward county,” pursuant to § 2263, Comp. Laws 1913. The tax was levied for 1913 and 1914. In 1915 the board refused to continue said levy. Thereupon mandamus was brought to compel it to do so, and upon hearing the peremptory writ directing said levy was issued. An appeal has been taken there-from.
The question is primarily one of construction of statute. Omitting immaterial parts the statute reads: “The board of county commissioners . . . may in its discretion, or, upon petition of 25 per ■cent of the taxpayers of said county, shall, annually make an appropriation and levy a tax upon all the taxable property of the county for the purpose of promoting diversified farming.” In the absence of a peti
In the very recent decision of Comer v. State, — Ind. —, 110 N. E-984, a similar petition and for the same purpose was presented to the board empowered to make such an appropriation. That opinion is quoted: “At the regular session of said council in September, 1914,. it failed, neglected, and refused to appropriate the sum of $1,500 out of the funds'of Jasper county to be used for the payment of a county agent for said county for the year 1915.” A petition of taxpayers for such an appropriation was filed in 1913 and an appropriation for that year made, but the board refused to continue the same in 1914 without a new petition. Thus it will be seen that the facts are parallel. The-court states: “The presented question requires for its solution a construction of part of § 12 of the vocational education law of 1913. . . . That section provides that, on the filing of a proper petition Together with a deposit of $500 to be used in'defraying expenses of such agent the county board of education shall file said petition within thirty days of its receipt with the county council, which body shall upon receipt of such petition appropriate annually the sum of $1,500 to be used in paying the salary and other expenses of said county agent/
Appellants contend that the legislature did not intend it to be so-construed, for the reason that they made no provisions for the discontinuance of the levy. This is the strongest reason why it intended the levy to be continuous, — that the course of work to which the tax is to-be applied should be uninterrupted.
It is argued that it should not be possible for one fourth of the taxpayers, “by the mere filing of a petition, to create a tax that is binding-on all the voters of that county forever after until some law is passed repealing the same.” When it comes to a question of sanction or acquiescence by a percentage of voters in tax laws, it is safe to assume that few of our permanent tax levies are initiated under the sanction of as large a percentage as this of the taxpayers affected. It can well be said that had the legislature intended a yearly appropriation at the discretion of the commissioners, they would have said so, instead of using mandatory language to the contrary, and they would hardly have required a petition of 25 per cent of the total taxpayers of the county, or nearly 1,200 in this county, to institute this levy. To procure such
It is contended that the vesting of power in the commissioners to levy the tax upon a petition of a minority of the taxpayers “is a delegation of legislative powers to a minority of the voters in any county.” There is no delegation of power by the legislature to a minority of the voters, or at all. Instead the legislature itself has declared the limits within which the levy must be kept and the conditions precedent to and under which a levy shall be made. Nothing is left to discretion of the board, and nothing is delegated to the board, in the way of legislative discretion, that having been fully exercised by the law-making power in the first instance. Picton v. Cass County, 13 N. D. 242 at 246, 100 N. W. 711, 3 Ann. Cas. 345, holding under closely analogous circumstances that such “discretion committed to the several boards (of county commissioners in tax proceedings) is administrative only,” quoting the syllabus. The power of the legislature to make the provision in question is not challenged, nor could it well be. The judgment is affirmed.
Concurrence Opinion
(concurring especially). While the above matter was pending in this court, the supreme court of Indiana handed down a decision in Comer v. State, — Ind. — , 110 N. E. 984, construing a similar law in favor of respondent. I do not believe this court should establish a new line of authority upon this proposition, and therefore concur in the holding above. However, I do not believe that, upon reason, the Indiana court was justified in saying that the word “annually” is equivalent to “annually, each and every year thereafter during the existence of the law,” which is necessarily the result of their holding. The matter is of no particular importance in this state. If the legislature did not intend the construction which we have now placed upon the law, they can amend it to suit their wishes before another year’s appropriations mature.