(dissenting).
I dissent.
As a person I sympathize with the result attained by the majority; however, as a judicial officer having the responsibility of interpreting the law and not writing the law on subjects which have been so clearly legislated, I must put my personal sympathies aside and decide the case applying the law established by the Legislature. There are many cases that the law decides but there are few cases that decide the law. The law clearly decides this case.
Section 10-1011, N.D.R.C. of 1943, provided :
“All the property of every cemetery corporation and the lots sold by it to individual proprietors shall be exempt from taxation, assessment, lien, attachment, and from levy and sale upon execution. All such real property shall be exempt from appropriation for streets, roads, or any other public uses or purposes.”
The above statute was expressly repealed by Chapter 111 of the Session Laws of 1959, Section 10-2818 (c), which chapter enacted the “North Dakota Nonprofit Corporation Act.” This repeal can now be found in Section 10-28-18 of the North Dakota Century Code. No statute has since been enacted which grants cemeteries a tax or assessment exempt status. In State ex rel. Strutz v. Baker, 71 N.D. 153, 299 N.W. 574, at 578, this court, in defining legislative parlance, said:
“A repeal destroys; an amendment keeps alive.”
Under Section 10-1011, N.D.R.C. of 1943, first enacted in 1895, the public policy was declared to the effect that all the property of every cemetery corporation be exempt from “taxation, assessment, lien, attachment, and from levy and sale upon execution.” However, this policy was expressly repealed by the Legislature, effective from and after June 30, 1961, by Chapter 111 of the Session Laws of 1959.
The Louisiana case of Metairie Cemetery Association v. Board of Assessors, cited by the majority, was decided in 1885, and the court in that case was concerned with a constitutional exemption from taxation of “all places of burial — provided such exempted property be not used or leased for purposes of private or corporate profit or income, * * *.” Construing this consti*717tutional provision, the Louisiana court concluded that the cemetery in question, as a whole, was a “place of burial” within the intendment of the constitution and, therefore, held that it was exempt from taxation unless it was leased or used for purposes of private or corporate income or profit. North Dakota has no similar constitutional provision and, in view of the action taken by the 1959 Legislature, we no longer have a statute exempting cemeteries from special assessments.
The general law on this subject, where there is no constitutional or statutory provision, appears to be quite to the contrary of the majority decision.
“The principle is generally recognized that lands are not exempt from liability to special or local assessment merely because set apart exclusively for burial purposes, and public cemeteries have been held not exempt from special assessments as being public property or devoted to public use. Any such exemption must be clearly established, and must result from constitutional or statutory provisions.” 48 Am.Jur., Special or Local Assessments, Sec. 98.
“The principle is generally recognized that lands are not exempt from liability to special assessment merely because set apart exclusively for burial purposes.” 71 A.L.R. Anno. — Cemeteries—Local Improvement Assessment, at 322.
“ * * * aside from valid constitutional or statutory exemption, according to the weight of authority, burial grounds and the property of cemetery associations are liable to special assessment for local improvements in like manner as other property, since, as stated, exemption from taxation in general has no application whatever to such exactions.” McQuillin on Municipal Corporations, Sec. 38.83.
The majority state that the records of the subcommittee and the full committee on legislative research, which studied and recommended the adoption of the Nonprofit Corporation Act, disclose no intention to break with public policy. However, these committees did recommend the repeal of Section 10-1011, N.D.R.C. of 1943, which, to me, discloses an intention to break with established governmental or public policy as it then existed. Furthermore, the Legislature adopted the Nonprofit Corporation Act recommended by these committees and, in so doing, specifically repealed''the exemption statute. In light of the above historical background, I cannot hold that the Legislature had no intention of doing what it so plainly did do.
Public policy of a state is founded upon its constitution and statutes. By the express repeal of the exemption statute, the exemption was destroyed.
“It is generally recognized that the public policy of a state is to be found in its constitution and statutes. Only in the absence of any declaration in these instruments may it be determined from judicial decisions. The Supreme Court has pointed out the limitations both of judicial declaration of public policy and of the application of the theory, stating that the theory of public policy embodies a doctrine of vague and variable quality, and unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection.”
16 Am.Jur.2d, Constitutional Law, Sec. 167.
The courts are not at liberty to declare a law void as being in violation of public policy because public policy is determined by the Legislature and the only limits upon the legislative power in such determinations are those fixed in the state and Federal constitutions. State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, dismissed 245 U.S. 627, 38 S.Ct. 60, 62 L.Ed. 518.
Our court can announce no public policy of its own but merely what it believes to be the public policy of the people of the state by which it is created. The court has no power to create or command but merely to construe and, where the people have spoken *718either in the form of a constitutional enactment or a valid and constitutional statute, it must be controlled by their decisions. Northern P. R. Co. v. Richland County, 28 N.D. 172, 148 N.W. 545; L.R.A.1915A, 129.
This is not a case where the court is called upon to construe or enforce a private contract, concerning which no public policy has been announced. It is a case in which we are asked to set aside a statute which itself expresses a public policy of the state in that it expressly repeals the exemption statute. It is true, as stated by the majority, that in Graves v. First National Bank in Grand Forks, 138 N.W.2d 584, 592 (N.D.1965), we recognized public policy as a factor in determining the validity of a provision in a last will and testament, but that case is not applicable here as it involved a matter upon which no public policy had been announced in the constitution or statutes. In this case the public has spoken through its Legislature. It enacted Section 10-2818(c) of Chapter 111 of the Session Laws of 1959. It expressly repeals Section 10-1011, N.D.R.C. of 1943, and there is now no statute which, in clear and unequivocal terms, exempts cemeteries from special assessments. I do not agree that Section 12-21-29, N.D.C.C., is an expression of legislative intent pertaining to taxation or assessment of cemeteries. This is a penal statute prohibiting desecration of property within a cemetery or a private burial ground. Its subject is not taxation, or assessments, or levy, or sale. It is not repugnant to the repeal of the exemption statute. One statute is not repugnant to another unless they relate to the same subject and are enacted for the same purpose. State v. Young, 68 N.D. 300, 279 N.W. 251; State v. Hawley, 68 N.D. 309, 279 N.W. 255; State v. Coman, 68 N.D. 310, 279 N.W. 256.
In the face of the express repeal of the exemption statute, it is inconceivable to me that the Legislature intended that the penal statute prohibiting desecration should be substituted for it. The quote cited by the majority from 71 A.L.R. at 324 does not support their reasoning in this case.
For the reasons set forth above, it is my opinion that special assessments on the property of the cemetery are valid assessments unless, for some reason not advanced here, they may be set aside. It is, therefore, my belief that the judgment of the district court should be affirmed.
KNUDSON, J., concurs.