I agree with those portions of the opinion prepared by Mr. Justice Birdzell relating to the matters covered by paragraphs one, three and four of the syllabus; but I disagree with that portion of the opinion relating to the matter covered by paragraph two of the syllabus. In my opinion § 3, chapter 171, Laws 1931 did not contemplate that the holder of a lien paramount to the hail indemnity tax lien should be entitled to recover hail indemnity taxes which he has paid only in cases where the payment was involuntary in the sense that the terms "voluntary" and "involuntary" are ordinarily employed as regards the recovery of taxes that have been paid. It is true the statute uses the words "paid under compulsion" *Page 709 but if those words are given the meaning that they generally possess, and attributed to them by the majority members, then the statute becomes not merely meaningless but positively injurious and could have no result except to bring about needless expense and confusion without any possible benefit to anyone. It is difficult to conceive of circumstances in which payment of hail indemnity taxes could have been exacted under compulsion from the holder of a lien paramount to the lien of such taxes in the sense that the term "under compulsion" is generally understood as applied to the recovery of taxes paid. No one has been able to suggest a situation where any such condition could have existed. There was no way whereby the holder of such lien could have been deprived of his property rights by reason of hail indemnity taxes or by enforcement of the lien of such taxes. All that possibly could have happened would have been that the property would have been sold for taxes, including the hail indemnity taxes but the holder of a prior paramount lien could always have protected himself by payment or tender of the "real" taxes against the premises without regard to the hail indemnity taxes. If payment had been refused he doubtless would have been entitled to resort to the courts and by appropriate writ could have compelled the county treasurer to accept the taxes tendered and to issue a proper tax receipt. He also could have brought action to cancel any claimed lien for such taxes or any tax certificates based thereon. Hence, when the lawmakers used the words "paid under compulsion" in this statute they must have had in mind a situation different from that generally contemplated when those words are used as regards the recovery of taxes that have been paid. It is well settled that the same words may have different meanings not only in different statutes but even in the same statute.
To ascertain the legislative intention as regards § 3, chapter 171, Laws 1931, it is well to consider the conditions existing at the time the law was enacted. What mischief or wrong was the statute intended to correct? What purpose was it intended to accomplish? The state hail insurance department was established in 1919. Laws 1919, chap. 160. In that act provision was made for the levy of a flat acreage tax and a hail indemnity tax. Id. §§ 6, 7. And it was specifically provided that "all provisions of law with reference to lien and collection of *Page 710 taxes shall apply to the taxes herein specified." Id. § 10. In short, the laws were framed so as to make it impossible for any person to pay general taxes against any tract of land that was subject to a hail indemnity tax unless such hail indemnity taxes also were paid; and if the property went to sale for delinquent taxes the land must be sold for the amount due both for general taxes and hail indemnity taxes and only one certificate of tax sale might issue. State ex rel. Olsness v. McCarthy, 53 N.D. 609,207 N.W. 436.
It is a matter of common knowledge that the statutory provisions were obeyed by the officials charged with the collection of taxes and that such officials treated hail indemnity taxes as actual legal taxes and that payment of a general tax would in no instance have been accepted unless it was accompanied by the full amount of any outstanding hail indemnity tax. This condition continued to exist throughout the state until the decision of this court in Davis v. McLean County, 52 N.D. 857, 204 N.W. 459. The decision in that case became final in June, 1925. That case involved a mortgage that had been executed, delivered and recorded several years before the law creating the hail insurance department had been enacted, and the precise question involved and determined in that case was whether a hail indemnity tax levied under the hail insurance act created a lien paramount to such antecedent mortgage. Whether a hail indemnity tax would or would not constitute a lien prior to mortgages executed subsequent to the enactment of the statute creating the hail insurance department but prior to the hail indemnity tax was not involved in Davis v. McLean County. That precise question, however, was involved and decided in State v. Johnson, 54 N.D. 184, 208 N.W. 966.
Under the hail insurance act the owner of land liable to hail indemnity tax might "at any time prior to the 15th day of June, in each year, withdraw any portion or all land owned by such person from the levy of said hail indemnity tax upon the making and filing of an affidavit, together with application for withdrawal, with the county auditor." 54 N.D. 187. In State v. Johnson, supra, this court held that the hail indemnity tax for any given year did not in any event become a lien upon the land until after the 15th day of June of such year, and that, consequently, a mortgage executed and recorded prior to June 15th was a lien prior to such indemnity tax. The precise *Page 711 question involved in State v. Johnson, supra, was whether a real estate mortgage executed on May 6, 1920 constituted a lien prior and superior to the lien of a hail indemnity tax for that year. The court held that inasmuch as the mortgage became a lien May 6, 1920, and the hail indemnity tax did not become a lien until after June 15, 1920, that the mortgage was a prior lien and that the holder of such mortgage was entitled to redeem the premises from a tax sale by paying the amount of the general taxes that were included in the tax sale certificate and that such holder was not required to tender or pay the hail indemnity taxes. The decision in State v. Johnson, supra, became final May 26, 1926. Hence we have this situation: the first definite and authoritative rule announced in this state to the effect that the lien of a hail indemnity tax is inferior and subordinate to all valid liens in existence and of record at or prior to the time that the tract of land becomes liable for the hail indemnity tax for a particular year, came into being May 26, 1926.
In many instances tax sale certificates upon lands that were subject to prior mortgages included hail indemnity taxes, and as a result of the application of the rule announced in State v. Johnson, supra, the holders of such tax sale certificates in many instances lost the amount represented by hail indemnity taxes; and, as a consequence, at the tax sale held in December, 1926, few persons were willing to purchase lands where the amount of delinquent taxes for which the lands were sold included hail indemnity taxes. Thereupon the legislative assembly that convened in January, 1927, enacted the law which provided that the holder of a tax sale certificate in part based upon hail indemnity taxes, and where the lands were subject to a paramount lien and the foreclosure of such lien had resulted in "cutting out" the purchaser's right under the tax certificate, upon application to the commissioner of insurance, should be entitled to a refund of the amount of the purchase price represented by the hail indemnity tax together with five per cent interest on such amount. The statute contained a provision that the claim for refund must be made within a year after the loss of title by the foreclosure of the paramount lien, except in cases where the loss had occurred prior to January 1, 1927, in which case the claim might be presented at any time prior to January 1, 1928. It *Page 712 was further provided that no claim for a refund should be allowed unless made before January 1, 1928. Laws 1927, chap. 172.
The legislative assembly which convened in January, 1929, amended and re-enacted this law and made it applicable not only to the holder of a tax sale certificate but also to the holder of any lien paramount to a hail indemnity tax who had "paid hail indemnity taxes in connection with the payment of general taxes against the land covered by his lien, which hail indemnity taxes have been paid over by the county auditor or treasurer to the state treasurer to the credit of the hail insurance department, or to the tax sale certificate holder as the case may be," etc. Laws 1929, chap. 147. Provision was made, also, whereby an applicant for refund must assign his claim for the hail indemnity tax to the commissioner of insurance and upon the presentation of an application accompanied by such assignment, the insurance commissioner was authorized to refund to tax certificate holders and to holders of paramount liens who had paid hail indemnity taxes, the amount of such hail indemnity taxes with interest at the rate of 5 per cent per annum. This statute also contained a provision limiting the time in which claims for refunds must be presented. As regards claims for refund of taxes paid by a mortgagee who was holder of a paramount lien, it provided that no claim for refund should be allowed unless made before January 1, 1930. Laws 1929, chap. 147, § 6. Both the statute enacted in 1927 and the one enacted in 1929 required the commissioner of insurance to make a report to the succeeding session of the legislative assembly of the refunds made under the provisions thereof together with the fullest practical statement of probable outstanding claims and an estimate of the amounts that would be required in succeeding years to meet the requirements of the act. Laws 1927, chap. 172, § 6; Laws 1929, chap. 147, § 7.
The legislative assembly that convened in January, 1931, amended and re-enacted chapter 147, Laws 1929. Laws 1931, chap. 171.
Section 3 of the 1931 act provided:
"Any holder of a lien paramount to the hail indemnity tax lien who, prior to July 1st, 1926, has paid under compulsion hail indemnity taxes in connection with the payment of general taxes against the land covered by his lien, . . . shall be entitled to have refunded to him from the Hail Insurance Department the amount paid by him on account *Page 713 of such hail indemnity taxes, upon filing application and proof as hereinafter provided, but no interest shall be considered to have accrued thereon from the time of such payment by said lien holder; provided that anyone who has paid hail indemnity taxes under compulsion for and on behalf of the paramount lien holder shall be considered the agent of such lien holder."
This statute also contains a provision similar to that contained in the two previous statutes, to-wit:
That "at each succeeding session of the legislature the Commissioner of Insurance shall make a report to the legislature of the refunds made under the provisions of this act, together with the fullest practical statement of probable outstanding claims, together with an estimate of the amounts that will be required in succeeding years to meet the requirements of this act." Id. § 7.
The report rendered by the Commissioner of Insurance to the legislative assembly that convened in January, 1931, disclosed that under the provisions of chapter 147, Laws 1929, refunds allowed to holders of superior liens aggregated $236,071.03. The report rendered by the commissioner of insurance to the legislative assembly that convened in January, 1933, discloses that refunds aggregating $262,632.42, were allowed and paid to holders of superior liens.
In the legislative enactment of 1931 it was provided:
"Such refunds to certificate holders and to holders of paramount liens who paid hail indemnity taxes for which they were not liable shall be made from the following funds, to-wit: A reserve fund that has been set aside or otherwise created or treated as existing in the Hail Insurance Department as a fund to meet anticipated refunds, or abatements of the indemnity hail taxes, and the fund created by interest collected on all interest bearing funds, of the State Hail Insurance Department for the year 1927, and successive years. These funds shall be resorted to in order stated to whatever extent may be necessary to make all such refunds." Id. § 5.
It will be noted that the legislative assembly contemplated that the applications for refund would involve considerable sums of money. Yet, if the interpretation that the majority members place upon this statute is correct, the amount of refunds, at most, would have been insignificant in amount. *Page 714
The provision in the enactment of 1931 enabling "any holder of a lien paramount to the hail indemnity tax lien who prior to July1, 1926 has paid under compulsion hail indemnity taxes" to obtain a refund becomes significant in view of the history of the hail insurance act.
As pointed out, the decision in State v. Johnson, supra (which definitely announced the rule that the lien of a hail indemnity tax is subordinate to a mortgage executed and recorded prior to the date that the implied contract between the owner of the land and the hail insurance department becomes effective) became final May 26, 1926, or about a month before July 1, 1926. Of course, some time was required for the people to become informed of the decision of the Supreme Court, and it is reasonable to assume that the lawmakers had this in mind. Apparently the lawmakers felt that an injustice had been done to holders of liens paramount to hail indemnity taxes, who, by virtue of the language of the statute and the then prevailing interpretation and administration thereof, in effect had been compelled to pay hail indemnity taxes on the theory that the same were in fact and in law actual taxes and paramount to the liens held by them, and that persons who had made such payments were in justice entitled to a refund.
It seems to me that when the legislature spoke of payments having been made under compulsion it had in mind merely the compulsion that normally existed in every case where a person in the ordinary course of business, under the then prevailing practice, had paid taxes which in part consisted of a hail indemnity tax in order to protect his lien, as the legislature well knew that in such circumstances he, in fact, had been compelled to pay the hail indemnity tax in order to pay taxes at all. Apparently this was also the construction that was placed upon the statute by the officers charged with the duty of executing it. In the report submitted by the commissioner of insurance to the legislative assembly in January, 1933, he sets forth an opinion of a special Assistant Attorney General from which I quote:
"Were it not for the history back of chapter 171, Session Laws of 1931, as disclosed by previous legislative enactments on the same general subject matter, we would have no hesitancy in holding that in our opinion none of the claims for refunds of the types to which our attention has been called, so far as paramount lien holders are concerned, *Page 715 would be eligible for such refunds in view of these provisions of this statute providing for such refunds when the original payments were made under compulsion. The reason for this is that said payments were made by such paramount lien holders voluntarily and not under legal duress and written protest. . . . To give the ordinary effect and interpretation to the words `under compulsion' as found in chapter 171 would apparently defeat the otherwise clear intention of the legislature to refund to all designated paramount lien holders the hail indemnity taxes which they paid and for which they were not legally liable. When this result is taken into consideration and is construed in the light of the apparent intent of the legislature as indicated both by the remainder of the body of the act and its title, it would seem that the words `under compulsion' above referred to should be disregarded as surplusage as their retention in the act would seem to make this legislation meaningless and ineffectual. On the other hand, it is indeed a serious matter for an executive or administrative department to assume the responsibility of interpreting legislative enactments in such a way as to completely ignore certain restrictions laid down by the legislature even though the act may become practically meaningless if such a determination is not made.
"We understand that the Attorney General of this state has held in substance that the restriction indicated by the use of the words `under compulsion' should be disregarded by the department in making refunds under chapter 171 for the reason that if this is not done the otherwise clearly expressed intent of the legislature, with respect to such refunds, would be totally defeated. While we are of the opinion that this is the logical conclusion to be reached, nevertheless, the question is not free from doubt and in view of other problems which we shall hereafter discuss, we are inclined to be of the opinion that this particular question might well be submitted to the courts for determination."
The Commissioner of Insurance caused to be printed appropriate blanks on which applications for refunds might be made under the 1931 statute by holders of superior liens who had paid hail indemnity taxes. And, as said, the report made by the Commissioner of Insurance to the legislative assembly in January, 1933, discloses that refunds aggregating in all $262,632.42 had been allowed to holders of superior liens, although as indicated in the opinion of the Assistant *Page 716 Attorney General, not a single claim for refund has been presented that was properly allowable under the construction that the majority members place upon the 1931 statute. I do not believe the lawmakers intended that the words "under compulsion" should have the meaning ordinarily attributed to them in actions to recover taxes paid. I believe that the lawmakers used these words in light of the facts with which they were dealing, and that they intended to allow a refund to every holder of a prior lien who, under the then prevailing practice, actually had been compelled to pay hail indemnity taxes in connection with general taxes. The obvious purpose of the statute was to create a liability where no liability formerly existed, i.e., to authorize a refund to persons who, if they had actually known their legal rights, would not have paid hail indemnity taxes but who nevertheless had been compelled to pay such taxes in connection with general taxes.