11 S.D. 294 | S.D. | 1898
This is an appeal from an order sustaining a demurrer to the complaint, and from a judgment entered thereon. The demurrer was interposed upon the following grounds: (1) That the court has no jurisdiction of the subject of the action; (2) that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges in its complaint “(2) that for the following named years the following amounts of personal taxes had been duly and legally levied, had accrued,.and remained unpaid upon the tax books of plaintiff county, for state, county, city and school purposes, against said defendant, on the 23d day of January, 1896, to-wit.” The taxes for the years from 1886 to 1894, inclusive, are specified, aggregating over $200. It is further alleged that these respective sums, with interest and penalty, were still wholly unpaid. It then alleges: That on the 3d day of Jan
The respondent contends that the court had no-jurisdiction, for the reason that taxes, are not debts; and are not recoverable by an 'action in court, when the law has provided a speedy and summary remedy for their collection. In this contention the counsel for respondent seems to be sustained by the weight of authority. This court held in Iowa Land Co. v. Douglas Co., 8 S. D. 491, 67 N.W. 52, that taxes are not debts, within the ordinary meaning of that term; and that decision has been affirmed in the recent case of Danforth v. McCook Co. (11 S. D. 258) 76 N. W. 940. Taxes not being debts, no action can be sustained to recover them, in the absence of statutory authority therefor, express or implied. Such authority may be implied' when no other remedy is provided by the statute. In speaking upon this subject, Judge Cooley says: “It has been shown that taxes are not debts, in the ordinary acceptation of that term, and that the statutory measures are to be resorted to for their col-' lection. Generally, no others are admissible. But the remedy by suit may be given either directly or by implication If no specific remedy is expressly given, or only an imperfect or inadequate one, the presumption that a remedy by suit was intended is but reasonable.” Cooley, Tax’n, 300; Black, Tax Titles, § 151; Perry v. Washburn, 20 Cal. 318; Board of Com’rs of Stafford Co. v. First National Bank of Stafford (Kan. Sup.) 30 Pac. 22; Detroit v. Jepp (Mich.) 18 N. W. 217; Corbin v. Young, 24 Kan. 199; Packard v. Tisdale, 50 Me. 376; Jones v. Gibson, 82
The counsel for appellant, while not conceding the correctness of the contention of the respondent, claims that ‘ ‘the complaint proceeds upon the theory that the defendant made a written contract with relation to a matter of personal interest to himself, and, as a consequence, obtained the release of his property from a litigation which would necessarily have been expensive and troublesome.” In other words, the appellant contends this is an action upon the contract. But this contention is not tenable. It is true, the contract for releasing the property from the levy by the treasurer is set out in the complaint, but the action is clearly to recover the taxes due. The only object of setting out the contract between the plaintiff and defendant seems to us to have been to show that the parties had consented that the question of the right of the plaintiff to recover these taxes should be referred to the court, thereby conferring upon the court jurisdiction over the subject-matter by agreement between themselves. But consent will not confer jurisdiction over the subject matter though it may over the person. We are clearly of the opinion that the demurrer was properly sustained upon the first ground, and that the court ruled correctly in directing judgment to be entered in favor of the defendant, as no amendment can be made to the complaint that will bring the cause of action within the jurisdiction of the court. If we were to take the view contended for by counsel for appellant, — that the action was in