Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-11-13
BOARD IS UPHELD
Bf THE COURT
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predicted upon the theory either that
such was the legislative intent or that
after exhausting the four mill limit
the legislative power to make appro.
priations was exhausted.
Neither Considered Sound.
'FNether Of these grounds appeal to
us as sound. We are wholly unable
to see how such intention Of the leg
slature is in the least reflected by
the dates Of the appropriations, and it
is manifestly negotiable TO adopt
such rule for under it appropriations
Of the least urgency and Importance
to The general welfare might be given
precedence over those of the gravest
urgency and importance. The other
| theory is, we think, likewise falla-
cious, for the legislature cannot def
nitely know that the assessed valua-
ton of the property Of the state as
subsequently, fixed will not afford,
within the four mill levy, sufficient
revenue to meet att oil its apprOpria-
tons. We think he better and SCUM
der rule is stated by Mr.. Gray in his
work Limitations of Taxing Power"
section POPS. He, says: 1T seems to
the writer that If there are taxes es-
pecially ordained in amount by the
constitution itself, they should be col
lected in full.
GAS to all other taxes Of equal leg
icla tive orn6n to II, M
good reason whY,mere priority of en-
actment as distinguished from mere
priority OF levy should give prefer
ence. 1t may be said that the legis-
lative power to tax is exhausted when
the bills which lay the taxes up to
the limit are enacted True, the con-
stitutiOnal provisions may originally
be regarded as intended to protect
the tax payer from excessive burdens,
but tax payers are not burdened until
.ne tax is actually levied or in some
way has become a liability. Viewed
in this light the legislatures control
over the rate is complete until the
moment taxes equaling the prescrib-
ed Limitation have actually been lev
led. The pro-rata method Of reduc-
ton seems to be the fairest rule to
apply to taxes OF. equal legislative
credit levied at the same time when
the aggregate of the levies exceed the
prescribed limitations" 4
Again in section 2O31 this author,
in speaking of the Colorado decision |
above cited, says.s This decision, II
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 ex-
penses of government was entitled to
precedence, but inasmuch as none of |
these taxes had vet been actually lev
led so as to become burdens on or
liabilities of the taxpayers, the writ
er 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 success
sive act might we'll have been regard
ed as repeating SO much of the earl
Ter acts as was inconsistent with it.
After the leyies had been made, and
the taxpayers liability had actually
occrued, of course the legislative
power of laying further taxes was ex-
nausted.
Must Be Considered.
"In this connection we deem it pro-
per to say that. While the appropria-
tons for the penal institutions and
the State Hospital for the Insane, in
which institutions the inmates are
confined against their will for the
benefit Of society, as well as that for
the feeble minded, do not fall strict
ly within the classification Of appro-
priations for the expenses of the three
coordinate branches of the state gov
eminent, it is clear that they are OF
necessity entitled to priority over all
appropriations in the second class,
and it is eminently proper that they
should be included by the board in
the first class Beyond this, we deem
it unnecessary to classify the appro7
priations in detail. The respondents
will, we believe experience no diff
Guilty in following the directions here
in pointed out
''For the above reasons, briefly ex-
pressed 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 expensee
Of maintaining the three coordinate
branches Of theitstate government,
and the penal institutions, the hospi-
tai for the insane and the feeble
minded, and that all other appropria-
tons, both standing and special,
should be reduced on a pr0-rata basis
to such sum as will bring the total
appropriations within the constitu-
tional four 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 ex-
pressed"
concurring Opinion.
Justice Goss writes a concurring
opinion. In closing. he says:
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 sremaining to exceed
the proceeds of one mill upon the as.
sessed valuation, so that when it Is
determined that the educational insti-
tutions must pro rate 1t is also there
by decided that they can receive no
more in the aggregate than one mill
Of the four mills levied. This in fact
passes upon all questions necessarily
involved.
'1n my opinion the Board should