1 N.D. 102 | N.D. | 1890
In 1885 the plaintiff, John Farrington, as trustee for the St. Paul, Minneapolis & Manitoba Railway Company, owned a large number of town lots in the city of Devil’s Lake, in Bamsey county. At the regular tax-sale in the year 1886, said lots were sold for the delinquent taxes of 1885, as the same appeared on the books of the treasurer of said county. The sale was made by oné John W. Maher, who, as treasurer- of Bamsey county, was the predecessor in office of the defendant, Ole Serumgard. The lots were purchased by, and the certificates of sale issued by said Maher, to the defendant the New England Investment Company. It is to declare said tax void, and to cancel said-certificates, that this action is brought. The lots were sold for both county and city taxes; both taxes being included in one certificate.
The complaint after the formal allegations as to parties plaintiff and defendant, and a description of the property affected, alleges: “That, in the year 1885 the officers of said county of Bamsey, and. the officers of said city of Devil’s Lake, a municipal corporation situated in said county, which officers were authorized by the laws of this territory to assess
The trial court made 19 findings of fact, nearly all of which are excepted to by defendants as not being supported by the testimony. We will give them, in substance: The first finds the title of the lands to be in plaintiff. The second finds that the
We will review the evidence pertaining to all findings which affect the assessment, levy, and equalization of the taxes, county- and city, and those only, because the decision of this case must depend upon the existencé or non-existence of a valid tax against plaintiff’s property in the year 1885. Respondent attacks -the validity of the tax, and the burden is upon him to es-
First, as to the county assessment: One Eeed was county assessor in 1885. Eeed testifies that at the proper time he personally assessed and valued the taxable property of the county, including the property of plaintiff; that in making such assessment he used the ordinary blank for that purpose, giving the name of the owner, with the description and valuation of the property; that after he had thus completed the assessment of all property in the- county, and had commenced to transcribe
Before stating the facts pertaining to the city taxes, we will state our conclusions upon the assessment and levy of the county taxes. The assessment was made by the proper county assessor, and in all respects as required by law. This fact is not questioned, but the contention is that no assessment roll was ever completed or filed as required by law. That the exact requirements of the statute were not met, will be admitted; but were the departures more than irregularities? Could respondent, by any possibility, have been prejudiced thereby? The assessments were made upon the usual and proper forms upon
The facts relating to the city assessment, in addition to those stated in the eleventh and twelfth findings, below, were as follows: One Coolin was the duly elected city assessor of Devil’s Lake in the year 1885. One Ferguson — the same who subsequently succeeded Heed as county assessor — purporting to act as deputy city assessor, made an assessment of the taxable property of the city of Devil’s Lake, and completed an assessment roll, and returned it to the city council. The statute requires that the assessment shall be made by the assessor. There is no provision in our statutes under which the city assessor of Devil’s ■Lake could have any authority for the appointment of a deputy. It is reasonably certain from the evidence that City Assessor Coolin never adopted the assessment made by Ferguson as his assessment, or had any knowledge or information concerning it
We find these propositions so often discussed in the same •case, and so intimately connected, that we cite the authorities indiscriminately upon the two points. It will be noticed that this is not an action to restrain the collection of a tax. It is an action, brought after tax-sale, to declare the tax void, and cancel the certificates issued thereon. It has been frequently held, however, that the same equitable rules apply in both cases. See City of Lawrence v. Killam, 11 Kan. (2d Ed.) 375; Stebbins v. Challiss, 15 Kan. 55; Wood v. Helmer, (Neb.) 4 N. W. Rep. 968. The general rule pertaining to the interference of equity with tax proceedings is stated by High, Inj. §§ 485, 486, as follows: “It may be laid down as a general rule that equity will not interfére by injunction with the collection of a tax which is alleged to be illegal or void merely because of its illegality, hardship, or irregularity, but there must be some special circumstances attending the threatened injury to distinguish it from a mere trespass, and thus to bring the case within some recognized head of equity jurisprudence; otherwise the person aggrieved will be left to his remedy at law. * * * Nor will equity interfere by injunction with the enforcement or collection of taxes because of irregularities, illegalities, or errors in the assessment of the tax, or in the proceedings incident to its collection, or in the execution of the power conferred upon taxing officers, but in all such cases the tax-payer seeking relief will be left to pursue his remedy at law; and where it does not appear that the established principle of taxation has been violated, or that actual and substantial injustice will result from the operation of the tax, or that it was for an unauthorized purpose, equity will not restrain the execution of a deed of land sold for taxes on the ground that the proceedings were irregular, or even void, in some particulars.”
In Michigan the rule is thus stated: “Equity will not interfere to restrain the collection of the public revenue for mere
In Illinois the leading case is Railroad Co. v. Frary, 22 Ill. 34. Chief Justice Catón then announced the rule of non-interference by courts of equity in its full scope, and, speaking of the exceptions to the rule, he says: “They are confined almost,if not entirely, to cases where the tax itself is not authorized by law; or, if the tax itself is authorized, it is assessed upon property not subject to the tax.” And see Du Page Co. v. Jenks, 65 Ill. 286; Swinney v. Beard, 71 Ill. 27; Nunda v. Crystal Lake, 79 Ill. 314; Trust Co. v. Weber, 96 Ill. 357; Moore v. Wayman, 107 Ill. 192.
In Warden v. Supervisors, 14 Wis. 618, it is said: “It will not be enough to show that the taxes are irregular, or even void. Courts of equity do not sit to remove and correct errors and mistakes of law. To be entitled to their assistance, the party applying therefor must show that he is in danger of losing a substantial right, and that he is in no fault.”
In City of Lawrence v. Killam, 11 Kan. 375, the court, by Brewer, J., say: “Where a definite portion of the tax is legal, and the balance illegal, equity will refuse to interfere, unless that which is legal be first paid.”
In Challiss v. Commissioners, 15 Kan. 49, it was held that “an injunction will not lie to restrain a tax proceeding without a prior payment or tender of all legal taxes.” And in Knox v. Dunn, 22 Kan. 683, the same was held in an action to quiet title as against a tax-certificate holder. And see Pritchard v. Madren, 24 Kan. 486; Wilder v. Cockshutt, 25 Kan. 504; Cartwright v. McFadden, 24 Kan. 662; Miller v. Ziegler, 31 Kan. 420, 2 Pac. Rep. 601.
Wood v. Helmer, supra, was an action brought to cancel tax certificates on the sole ground that the assessment roll was not verified. Plaintiff neither paid, nor offered to pay, the taxes justly chargeable against the land. .It was held that there was no equity in the petition, and judgment dismissing it was affirmed; and the court say: “But, if the owner of the land does not wish to take the hazard of an adverse title being made to his land by tax-deed, the legality of which remains undetermined, and files his'petition in equity to enjoin the execution of such deed, he must do equity, by paying, or offering to pay, his just proportion of the public burdens.” And to precisely the same effect is Boeck v. Merriam, 4 N. W. Rep. 962.
In Morrison v. Hershire, 32 Iowa 271, the court say: “We understand that it is a settled rule in equity that, where a party is in conscience bound to pay a certain sum of money which, together with an amount he is not legally bound to pay, is brought as a legal claim against him, equity will not restrain the collection of the whole unless he pay or offer to pay, by tender, the sum
In Frost v. Flick, 1 Dak. 131, the supreme court of the territory of Dakota gave full and emphatic endorsement to the rule of equitable non-interference except in cases where the tax is illegal or unauthorized, or where the property is exempt from taxation, or where fraud has been practiced by the taxing officers.
Clarke v. Ganz, 21 Minn. 387, was an action brought to restrain the collection of a tax on personal property on the ground that it had been illegally assessed. A demurrer to the complaint was sustained. The supreme court declined to consider the question of the legality or illegality of the assessment, holding that, under the equitable rule as' laid down in High, Inj., which they quote and approve, equity could not interfere in either case. The court further say: “In some of the states, exceptions have been allowed to this rule. There is so much diversity in the decisons allowing these exceptions that it is hardly profitable to discuss them, especially as none of them have any principle of equity jurisprudence to sustain them.” In that case, too, it was alleged that the collector was about to sell plaintiffs’ property, “thereby subjecting the plaintiffs to great injury, costs, and expense, andinvolvingthem in expensive and vexatious litigation and a multiplicity of suits, in order to keep control of their property, and prevent an unjust sacrifice thereof.” Say the court: “This quoted part of the complaint does not state any traversable facts, but only an inference or prediction as to what will be the consequences of the threatened levy. If such statements will make a case for injunction, it can be made in every case.” The corresponding allegations in this case are of exactly the same nature, and are fully disposed of by the Minnesota case.
The rule of non-interference by courts of equity in tax proceedings has been repeatedly recognized and enforced in New York. See cases collected in Susquehanna Bank v. Supervisors, 25 N. Y. 313. In State Railroad Tax Cases, 92 U. S. 575, it is said in the head-notes: “While this court does not lay down any absolute rule limiting the powers of a court of equity in restraining the collection of taxes, it declares that it is essential that every case be brought within some of the recognized rules of equity jurisprudence, and that neither illegality or iri’egularity in the proceedings, nor error or excess in the valuation, nor the hardship or in justice of the law, provided it be constitutional, nor any grievance which can be remedied by a suit at law, either before or after the payment of a tax, will authorize an injunctiozz against its collection.” And agaizz: “No injunctiozi, preliminary or fizzal, can be gz’anted • to stay collection of taxes uzitil it is shown that all the taxes conceded to be due, or which the court can see ought to be paid, or which can be shown to be due by affidavits, have beezz paid or tendered without, demanding a receipt in full.” See, also, Dows v. Chicago, 11 Wall. 108; Hannewinkle v. Georgetown, 15 Wall. 548; Cummings v. Bank, 101 U. S. 153.
Cases may be found holding opinions more or less opposed to the doctrine of the foregoing cases. Upon this subject, Mr. High says: “Upozz the other hand, the decisions are neither few in number, nor wantizig in respectability, which have inclined to a departure from the doctrine of non-interference in equity with the collection of taxes; and it will be found, as we proceed, that the courts have in many instances extended preventive relief by injunction against the exercise of the taxing power in cases where such relief was unwarranted either upon principle or upon the clear weight of authority.” High, Inj. §484.
Courts of equity should, in general, extend the strong arm of their preventive power to restrain the collection of a tax or annul tax proceedings only where the property sought to be taxed is exempt from taxation or the tax itself, is not war
Applying the principles hereinbefore enumerated to the facts in this case, we find that the plaintiff has invoked the equity powers of the court by a complaint that shows that a cloud has been cast upon the title to the real estate therein described- by the issuance to the defendant corporation, by the treasurer of said county, of tax certificates, upon plaintiff’s lands, issued