State v. Rasmusson ( 1941 )

Plaintiff has filed a petition for rehearing in which it is suggested that, in reaching the conclusions above stated, we overlooked § 184 of the Constitution of North Dakota. That section is as follows: "Any city, county, township, town, school district, or any other political subdivision incurring indebtedness shall at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof when due, and all laws or ordinances providing for the payment of the interest or principal of any debt shall be irrepealable until such debt be paid."

All that this section requires is that political subdivisions make provision to collect taxes to pay an indebtedness at or before the time the indebtedness is incurred. In this case Byron School District made the required levy and the full amount thereof was extended against the taxable property of the district. It is true that there was less taxable property, both real and personal, in the district at the times of the annual extensions of the levy than there was at the time the levy was originally authorized, but there is no language in § 184, supra, which would restrict a change in the boundaries of a school district or, where land is detached from a district, require that prior unextended levies for debt service follow the detached land. There was full compliance with the constitutional requirements.

Plaintiff also suggests that we overlooked the decision of this court in the case of Coler v. Coppin, 10 N.D. 86, 85 N.W. 988. In that case a judgment creditor sought to compel a levy to pay a judgment. The judgment had been rendered against a school district which had later been dissolved and its territory divided to form two new districts. Upon the dissolution and division, no equalization of the judgment indebtedness had been made nor any levy made to pay it. Both new districts were made parties to the action. The trial court equalized the judgment indebtedness in proportion to the assessed valuation of the respective districts and directed the issuance of writs of mandamus to compel each district to levy taxes to pay its share thereof. This court affirmed the judgment of the trial court, holding that in the circumstances the trial court had the power to direct an equalization of indebtedness. In the instant case the situation is entirely different. Here Byron District, which incurred the indebtedness, continued in existence. The levy which it had made to pay its indebtedness to the state was continued in effect and the full amount thereof was extended against the real and personal property remaining in that district. Plaintiff does not attack the equalization proceedings. It does not say that they were irregular or resulted in injustice. It contends that, without regard to the equalization proceedings, the indebtedness to the state should have been apportioned between the two districts in proportion to the assessed value of the property in each, and the tax levy for the payment thereof extended accordingly. As was said by Judge Bartholomew in construing an almost identical statute (Revised Code of 1895, § 732) in State ex rel. Reynolds v. School Dist.6 N.D. 488, 493, 71 N.W. 722: "This is a misapprehension. It deprives the arbitrators of their principal function, which is to ``justly and fairly equalize their several interests.' If everything is to be divided in proportion to the percentage of taxable property in the respective districts, then an accountant is needed, rather than a board of arbitrators. But the law does not contemplate anything of that kind. . . . The arbitrators must consider all the circumstances surrounding each case, and the pecuniary benefits and detriment necessarily accruing to each district; and, when either district is necessarily benefited at the expense of the other, compensation should be awarded for such benefits.Where the old district was largely indebted, this equalization oftheir respective interests could readily be accomplished by fixing the proportion of such indebtedness to beborne by each of such districts."

We have not said, as is intimated in the petition, that injured creditors may not, in a proper action, attack the equalization proceedings. That question is not before us. The petition for a rehearing is denied.

BURR, Ch. J., and MORRIS, NUESSLE, and CHRISTIANSON, JJ., concur.