Home Owners' Loan Corp. v. Wright

The appellant has filed a petition for rehearing in which he contends that since we hold that the statute requires the county treasurer to collect extended personal property taxes the collection made in this case was lawful and that chapter 286, ND Session Laws 1931, provides for the refund of only those taxes *Page 242 that have been "unlawfully collected." He argues that the taxes in this case have been collected lawfully and cannot be refunded even though paid under protest. It is urged that unlawful collection is a condition precedent to the right to a refund.

As we have pointed out in the main opinion, the statutes provide and the appellant concedes that the plaintiff's lien is superior and paramount to the lien of extended personal property taxes. Chapter 286 states that, "If the court determines that such tax was unlawfully collected, in whole or in part for any reason going or pertaining to the merits of the tax," it must enter judgment for the refund. The appellant, while conceding the priority of plaintiff's lien, would stand strictly upon the unmodified technical meaning of the term "unlawfully collected." A statute must be construed in the light of other legislative enactments pertaining to the same matter and with a view of accomplishing the purpose that the legislature had in mind. The purpose of chapter 286 is to permit the recovery of taxes paid under proper protest to which the county is not meritoriously entitled and provide a procedure for that recovery.

In this case, the county treasurer was in no position to determine the merits of the respective liens and the statute did not impose upon him the duty to do so. It left that matter to the determination of other authorities who had the time and facilities to investigate and decide the question of priority. The county treasurer came into possession of the money sought to be recovered through the technical process of collection. It has now been determined upon examination of the merits of the tax lien as compared with the plaintiff's lien that the county is not entitled to the money. It was paid under protest. We do not believe that the legislature intended that a county should keep taxes so collected. Recovery thereof may be had under the provisions of chapter 286. To hold otherwise would frustrate the intention of the legislature and involve chapter 242, ND Session Laws 1929, in a grave question of constitutionality. We adhere to our former opinion.

BURR, Ch. J., and CHRISTIANSON, NUESSLE, and BURKE, JJ., concur. *Page 243