Page:North Dakota Reports (vol. 2).pdf/448

 APPEAL from district court, Foster county; Hon. Roderick Rose, Judge.

Ben Borton and Fredrus Baldwin, for appellants. John S. Watson, for respondent.

Action by John C. Yeatman against James King, the county of Foster, James Murphy, county treasurer, and Walter M. Moore, county auditor, to foreclose a real estate mortgage. Judgment for plaintiff. The defendant county and its treasurer and auditor appeal Affirmed.

Ben Borton and Fredrus Baldwin, for appellants:

Under the power of the legislature to allow mechanic's liens, it has been held that under the statute making such liens prior or superior to mortgages, that the law was constitutional. Brooks v. Railroad Co., 101 U. S. 443; Meyer v. Hornby, 101 N. Y. 728. See, also, Bertholf v. O’Reilley, 74 N. Y. 509.

John S. Watson, for respondent:

The lien upon real estate for taxes has no existence unless there be some statute creating it, and such statute must be strictly construed. Desty on Taxation, p. 734; State v. Newark, 42, N. J. Law 38; Carter v. Rodewald, 108 Ill. 351. Taxes are burdens or charges imposed by the legislative power of a state upon persons or property to raise money for public purposes. Blackwell, Tax Titles, 1; Perry v. Washburn, 20 Cal. 318; Loan Association v. Topeka, 20 Wall. 655. To subject the lien of a prior mortgage of land to the claim of the county for the value of seed wheat furnished is, in effect, a tax upon the mortgagee, and as such violates every principle upon which rests the taxing power. People v. Salem, 20 Mich. 474; Weeks v. Milwaukee, 10 Wis. 258; Ryerson v. Utley, 16 Mich. 269; Merrick v. Amherst, 12 Allen 504 On the theory that the seed lien is a tax the particular tracts are subject to a two-fold levy for the purpose of raising a single fund, which is against the policy of the law. Cook v. Burligton, 13 N. W. Rep. 113; Talman v. Butler County, 12 Iowa 534; Rice County v. Bank, 23 Minn. 280. Apportionment of the burden is a necessary element in